Course-Syllabus and-cases-Pub-Corp

PUBLIC CORPORATIONS
Syllabus of Atty. Chris Tenorio
I. General Principles
A. Corporation
1. Definition
2. Classification
3. Nature of Local Government Units
a) Elements
b) Dual Nature and Functions
c) Municipal Corporations/LGUs in the Philippines (Section 1, Article X,
Constitution)
Section 1. The territorial and political subdivisions of the Republic of

the Philippines are the provinces, cities, municipalities, and barangays.
There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
4. Types of Local Government Units

Cases:
Liban v. Gordon (G.R. No. 175352, 18 January 2011, 654 PHIL 680-738)
Boy Scouts of the Phil v. COA (G.R. No. 177131, [June 7, 2011], 666 Phil
140-224)
G. R. No. 175352 January 18, 2011

DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR M. VIARI, Petitioners,
vs.
RICHARD J. GORDON, Respondent.
PHILIPPINE NATIONAL RED CROSS, Intervenor.
RESOLUTION
LEONARDO-DE CASTRO, J.:
This resolves the Motion for Clarification and/or for Reconsideration 1 filed on August 10,
2009 by respondent Richard J. Gordon (respondent) of the Decision promulgated by this
Court on July 15, 2009 (the Decision), the Motion for Partial Reconsideration 2 filed on
August 27, 2009 by movant-intervenor Philippine National Red Cross (PNRC), and the
latter’s Manifestation and Motion to Admit Attached Position Paper 3 filed on December 23,
2009.
In the Decision,4 the Court held that respondent did not forfeit his seat in the Senate when
he accepted the chairmanship of the PNRC Board of Governors, as "the office of the PNRC
Chairman is not a government office or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13, Article VI of the 1987
Constitution."5 The Decision, however, further declared void the PNRC Charter "insofar as it
creates the PNRC as a private corporation" and consequently ruled that "the PNRC should
incorporate under the Corporation Code and register with the Securities and Exchange
Commission if it wants to be a private corporation." 6 The dispositive portion of the Decision
reads as follows:
WHEREFORE, we declare that the office of the Chairman of the Philippine National Red
Cross is not a government office or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution.
We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of
the Philippine National Red Cross, or Republic Act No. 95, as amended by Presidential
Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a private
corporation or grant it corporate powers.7
In his Motion for Clarification and/or for Reconsideration, respondent raises the following
grounds: (1) as the issue of constitutionality of Republic Act (R.A.) No. 95 was not raised by
1 | P a g e : C a s e s o n P u b l i c C o r p o r a ti o n ( A tt y . C h r i s T e n o r i o )
Josef Elvin Campos
the parties, the Court went beyond the case in deciding such issue; and (2) as the Court
decided that Petitioners did not have standing to file the instant Petition, the pronouncement
of the Court on the validity of R.A. No. 95 should be considered obiter. 8
Respondent argues that the validity of R.A. No. 95 was a non-issue; therefore, it was
unnecessary for the Court to decide on that question. Respondent cites Laurel v.
Garcia,9 wherein the Court said that it "will not pass upon a constitutional question although
properly presented by the record if the case can be disposed of on some other ground" and
goes on to claim that since this Court, in the Decision, disposed of the petition on some
other ground, i.e., lack of standing of petitioners, there was no need for it to delve into the
validity of R.A. No. 95, and the rest of the judgment should be deemed obiter.
In its Motion for Partial Reconsideration, PNRC prays that the Court sustain the
constitutionality of its Charter on the following grounds:
A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL REPUBLIC ACT NO.

95 AS AMENDED DEPRIVED INTERVENOR PNRC OF ITS CONSTITUTIONAL RIGHT
TO DUE PROCESS.
1. INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT
CONTROVERSY.
2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS AMENDED
WAS NEVER AN ISSUE IN THIS CASE.
B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE NO. 1264 AND
NOT REPUBLIC ACT NO. 95. PRESIDENTIAL DECREE NO. 1264 WAS NOT A
CREATION OF CONGRESS.
C. PNRC’S STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS OWN. WHILE IT IS
PERFORMING HUMANITARIAN FUNCTIONS AS AN AUXILIARY TO GOVERNMENT, IT
IS A NEUTRAL ENTITY SEPARATE AND INDEPENDENT OF GOVERNMENT CONTROL,
YET IT DOES NOT QUALIFY AS STRICTLY PRIVATE IN CHARACTER.
In his Comment and Manifestation10 filed on November 9, 2009, respondent manifests: (1)

that he agrees with the position taken by the PNRC in its Motion for Partial Reconsideration
dated August 27, 2009; and (2) as of the writing of said Comment and Manifestation, there
was pending before the Congress of the Philippines a proposed bill entitled "An Act
Recognizing the PNRC as an Independent, Autonomous, Non-Governmental Organization
Auxiliary to the Authorities of the Republic of the Philippines in the Humanitarian Field, to be
Known as The Philippine Red Cross."11
After a thorough study of the arguments and points raised by the respondent as well as
those of movant-intervenor in their respective motions, we have reconsidered our
pronouncements in our Decision dated July 15, 2009 with regard to the nature of the PNRC
and the constitutionality of some provisions of the PNRC Charter, R.A. No. 95, as amended.
As correctly pointed out in respondent’s Motion, the issue of constitutionality of R.A. No. 95
was not raised by the parties, and was not among the issues defined in the body of the
Decision; thus, it was not the very lis mota of the case. We have reiterated the rule as to
when the Court will consider the issue of constitutionality in Alvarez v. PICOP Resources,
Inc.,12 thus:
This Court will not touch the issue of unconstitutionality unless it is the very lis mota. It is a
well-established rule that a court should not pass upon a constitutional question and decide
a law to be unconstitutional or invalid, unless such question is raised by the parties and that
when it is raised, if the record also presents some other ground upon which the court may
[rest] its judgment, that course will be adopted and the constitutional question will be left for
consideration until such question will be unavoidable. 13
Under the rule quoted above, therefore, this Court should not have declared void certain
sections of R.A. No. 95, as amended by Presidential Decree (P.D.) Nos. 1264 and 1643,
the PNRC Charter. Instead, the Court should have exercised judicial restraint on this matter,
especially since there was some other ground upon which the Court could have based its
judgment. Furthermore, the PNRC, the entity most adversely affected by this declaration of
unconstitutionality, which was not even originally a party to this case, was being compelled,
as a consequence of the Decision, to suddenly reorganize and incorporate under the
Corporation Code, after more than sixty (60) years of existence in this country.
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Its existence as a chartered corporation remained unchallenged on ground of
unconstitutionality notwithstanding that R.A. No. 95 was enacted on March 22, 1947 during
the effectivity of the 1935 Constitution, which provided for a proscription against the creation
of private corporations by special law, to wit:
SEC. 7. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations, unless such corporations are owned and
controlled by the Government or any subdivision or instrumentality thereof. (Art. XIV, 1935
Constitution.)
Similar provisions are found in Article XIV, Section 4 of the 1973 Constitution and Article XII,
Section 16 of the 1987 Constitution. The latter reads:
SECTION 16. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned or controlled
corporations may be created or established by special charters in the interest of the
common good and subject to the test of economic viability.
Since its enactment, the PNRC Charter was amended several times, particularly on June
11, 1953, August 16, 1971, December 15, 1977, and October 1, 1979, by virtue of R.A. No.
855, R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643, respectively. The passage of
several laws relating to the PNRC’s corporate existence notwithstanding the effectivity of
the constitutional proscription on the creation of private corporations by law, is a recognition
that the PNRC is not strictly in the nature of a private corporation contemplated by the
aforesaid constitutional ban.
A closer look at the nature of the PNRC would show that there is none like it not just in
terms of structure, but also in terms of history, public service and official status accorded to
it by the State and the international community. There is merit in PNRC’s contention that its
structure is sui generis.
The PNRC succeeded the chapter of the American Red Cross which was in existence in the
Philippines since 1917. It was created by an Act of Congress after the Republic of the
Philippines became an independent nation on July 6, 1946 and proclaimed on February 14,
1947 its adherence to the Convention of Geneva of July 29, 1929 for the Amelioration of the
Condition of the Wounded and Sick of Armies in the Field (the "Geneva Red Cross
Convention"). By that action the Philippines indicated its desire to participate with the
nations of the world in mitigating the suffering caused by war and to establish in the
Philippines a voluntary organization for that purpose and like other volunteer organizations
established in other countries which have ratified the Geneva Conventions, to promote the
health and welfare of the people in peace and in war. 14
The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and 6373, and further
amended by P.D. Nos. 1264 and 1643, show the historical background and legal basis of
the creation of the PNRC by legislative fiat, as a voluntary organization impressed with
public interest. Pertinently R.A. No. 95, as amended by P.D. 1264, provides:
WHEREAS, during the meeting in Geneva, Switzerland, on 22 August 1894, the nations of
the world unanimously agreed to diminish within their power the evils inherent in war;
WHEREAS, more than one hundred forty nations of the world have ratified or adhered to
the Geneva Conventions of August 12, 1949 for the Amelioration of the Condition of the
Wounded and Sick of Armed Forces in the Field and at Sea, The Prisoners of War, and The
Civilian Population in Time of War referred to in this Charter as the Geneva Conventions;
WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946,
and proclaimed on February 14, 1947 its adherence to the Geneva Conventions of 1929,
and by the action, indicated its desire to participate with the nations of the world in
mitigating the suffering caused by war and to establish in the Philippines a voluntary
organization for that purpose as contemplated by the Geneva Conventions;
WHEREAS, there existed in the Philippines since 1917 a chapter of the American National
Red Cross which was terminated in view of the independence of the Philippines; and
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WHEREAS, the volunteer organizations established in other countries which have ratified or
adhered to the Geneva Conventions assist in promoting the health and welfare of their
people in peace and in war, and through their mutual assistance and cooperation directly
and through their international organizations promote better understanding and sympathy
among the people of the world;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of

the powers vested in me by the Constitution as Commander-in-Chief of all the Armed
Forces of the Philippines and pursuant to Proclamation No. 1081 dated September 21,
1972, and General Order No. 1 dated September 22, 1972, do hereby decree and order
that Republic Act No. 95, Charter of the Philippine National Red Cross (PNRC) as amended
by Republic Acts No. 855 and 6373, be further amended as follows:
Section 1. There is hereby created in the Republic of the Philippines a body corporate and
politic to be the voluntary organization officially designated to assist the Republic of the
Philippines in discharging the obligations set forth in the Geneva Conventions and to
perform such other duties as are inherent upon a national Red Cross Society. The national
headquarters of this Corporation shall be located in Metropolitan Manila. (Emphasis
supplied.)
The significant public service rendered by the PNRC can be gleaned from Section 3 of its
Charter, which provides:
Section 3. That the purposes of this Corporation shall be as follows:

(a) To provide volunteer aid to the sick and wounded of armed forces in time of war,
in accordance with the spirit of and under the conditions prescribed by the Geneva
Conventions to which the Republic of the Philippines proclaimed its adherence;
(b) For the purposes mentioned in the preceding sub-section, to perform all duties
devolving upon the Corporation as a result of the adherence of the Republic of the
Philippines to the said Convention;
(c) To act in matters of voluntary relief and in accordance with the authorities of the
armed forces as a medium of communication between people of the Republic of the
Philippines and their Armed Forces, in time of peace and in time of war, and to act in
such matters between similar national societies of other governments and the
Governments and people and the Armed Forces of the Republic of the Philippines;
(d) To establish and maintain a system of national and international relief in time of
peace and in time of war and apply the same in meeting and emergency needs
caused by typhoons, flood, fires, earthquakes, and other natural disasters and to
devise and carry on measures for minimizing the suffering caused by such disasters;
(e) To devise and promote such other services in time of peace and in time of war as
may be found desirable in improving the health, safety and welfare of the Filipino
people;
(f) To devise such means as to make every citizen and/or resident of the Philippines
a member of the Red Cross.
The PNRC is one of the National Red Cross and Red Crescent Societies, which, together
with the International Committee of the Red Cross (ICRC) and the IFRC and RCS, make up
the International Red Cross and Red Crescent Movement (the Movement). They constitute
a worldwide humanitarian movement, whose mission is:
[T]o prevent and alleviate human suffering wherever it may be found, to protect life and
health and ensure respect for the human being, in particular in times of armed conflict and
other emergencies, to work for the prevention of disease and for the promotion of health
and social welfare, to encourage voluntary service and a constant readiness to give help by
the members of the Movement, and a universal sense of solidarity towards all those in need
of its protection and assistance.15
The PNRC works closely with the ICRC and has been involved in humanitarian activities in
the Philippines since 1982. Among others, these activities in the country include:
1. Giving protection and assistance to civilians displaced or otherwise affected by
armed clashes between the government and armed opposition groups, primarily in
Mindanao;
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2. Working to minimize the effects of armed hostilities and violence on the
population;
3. Visiting detainees; and
4. Promoting awareness of international humanitarian law in the public and private
sectors.16
National Societies such as the PNRC act as auxiliaries to the public authorities of their own
countries in the humanitarian field and provide a range of services including disaster relief
and health and social programmes.
The International Federation of Red Cross (IFRC) and Red Crescent Societies (RCS)
Position Paper,17 submitted by the PNRC, is instructive with regard to the elements of the
specific nature of the National Societies such as the PNRC, to wit:
National Societies, such as the Philippine National Red Cross and its sister Red Cross and
Red Crescent Societies, have certain specificities deriving from the 1949 Geneva
Convention and the Statutes of the International Red Cross and Red Crescent Movement
(the Movement). They are also guided by the seven Fundamental Principles of the Red
Cross and Red Crescent Movement: Humanity, Impartiality, Neutrality, Independence,
Voluntary Service, Unity and Universality.
A National Society partakes of a sui generis character. It is a protected component of the

Red Cross movement under Articles 24 and 26 of the First Geneva Convention, especially
in times of armed conflict. These provisions require that the staff of a National Society shall
be respected and protected in all circumstances. Such protection is not ordinarily afforded
by an international treaty to ordinary private entities or even non-governmental
organisations (NGOs). This sui generis character is also emphasized by the Fourth Geneva
Convention which holds that an Occupying Power cannot require any change in the
personnel or structure of a National Society. National societies are therefore
organizations that are directly regulated by international humanitarian law, in
contrast to other ordinary private entities, including NGOs.
xxxx
In addition, National Societies are not only officially recognized by their public authorities as
voluntary aid societies, auxiliary to the public authorities in the humanitarian field, but also
benefit from recognition at the International level. This is considered to be an element
distinguishing National Societies from other organisations (mainly NGOs) and other forms of
humanitarian response.
x x x. No other organisation belongs to a world-wide Movement in which all Societies have
equal status and share equal responsibilities and duties in helping each other. This is
considered to be the essence of the Fundamental Principle of Universality.
Furthermore, the National Societies are considered to be auxiliaries to the public authorities
in the humanitarian field. x x x.
The auxiliary status of [a] Red Cross Society means that it is at one and the same time a
private institution and a public service organization because the very nature of its
work implies cooperation with the authorities, a link with the State. In carrying out their
major functions, Red Cross Societies give their humanitarian support to official bodies, in
general having larger resources than the Societies, working towards comparable ends in a
given sector.
xxx
No other organization has a duty to be its government’s humanitarian partner while
remaining independent.18 (Emphases ours.)
It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has remained
valid and effective from the time of its enactment in March 22, 1947 under the 1935
Constitution and during the effectivity of the 1973 Constitution and the 1987 Constitution.
The PNRC Charter and its amendatory laws have not been questioned or challenged on
constitutional grounds, not even in this case before the Court now.
In the Decision, the Court, citing Feliciano v. Commission on Audit, 19 explained that the
purpose of the constitutional provision prohibiting Congress from creating private
corporations was to prevent the granting of special privileges to certain individuals, families,
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or groups, which were denied to other groups. Based on the above discussion, it can be
seen that the PNRC Charter does not come within the spirit of this constitutional provision,
as it does not grant special privileges to a particular individual, family, or group, but creates
an entity that strives to serve the common good.
Furthermore, a strict and mechanical interpretation of Article XII, Section 16 of the 1987
Constitution will hinder the State in adopting measures that will serve the public good or
national interest. It should be noted that a special law, R.A. No. 9520, the Philippine
Cooperative Code of 2008, and not the general corporation code, vests corporate power
and capacities upon cooperatives which are private corporations, in order to implement the
State’s avowed policy.
In the Decision of July 15, 2009, the Court recognized the public service rendered by the
PNRC as the government’s partner in the observance of its international commitments, to
wit:
The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose

mission is to bring timely, effective, and compassionate humanitarian assistance for the
most vulnerable without consideration of nationality, race, religion, gender, social status, or
political affiliation. The PNRC provides six major services: Blood Services, Disaster
Management, Safety Services, Community Health and Nursing, Social Services and
Voluntary Service.
The Republic of the Philippines, adhering to the Geneva Conventions, established the
PNRC as a voluntary organization for the purpose contemplated in the Geneva Convention
of 27 July 1929. x x x.20 (Citations omitted.)
So must this Court recognize too the country’s adherence to the Geneva Convention
and respect the unique status of the PNRC in consonance with its treaty
obligations. The Geneva Convention has the force and effect of law. 21 Under the
Constitution, the Philippines adopts the generally accepted principles of international law as
part of the law of the land.22 This constitutional provision must be reconciled and
harmonized with Article XII, Section 16 of the Constitution, instead of using the latter to
negate the former.
By requiring the PNRC to organize under the Corporation Code just like any other private
corporation, the Decision of July 15, 2009 lost sight of the PNRC’s special status under
international humanitarian law and as an auxiliary of the State, designated to assist it in
discharging its obligations under the Geneva Conventions. Although the PNRC is called to
be independent under its Fundamental Principles, it interprets such independence as
inclusive of its duty to be the government’s humanitarian partner. To be recognized in the
International Committee, the PNRC must have an autonomous status, and carry out its
humanitarian mission in a neutral and impartial manner.
However, in accordance with the Fundamental Principle of Voluntary Service of National

Societies of the Movement, the PNRC must be distinguished from private and profit-making
entities. It is the main characteristic of National Societies that they "are not inspired by the
desire for financial gain but by individual commitment and devotion to a humanitarian
purpose freely chosen or accepted as part of the service that National Societies through its
volunteers and/or members render to the Community." 23
The PNRC, as a National Society of the International Red Cross and Red Crescent
Movement, can neither "be classified as an instrumentality of the State, so as not to lose its
character of neutrality" as well as its independence, nor strictly as a private corporation
since it is regulated by international humanitarian law and is treated as an auxiliary of the
State.24
Based on the above, the sui generis status of the PNRC is now sufficiently
established.1âwphi1 Although it is neither a subdivision, agency, or instrumentality of the
government, nor a government-owned or -controlled corporation or a subsidiary thereof, as
succinctly explained in the Decision of July 15, 2009, so much so that respondent, under
the Decision, was correctly allowed to hold his position as Chairman thereof concurrently
while he served as a Senator, such a conclusion does not ipso facto imply that the PNRC is
a "private corporation" within the contemplation of the provision of the Constitution, that
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must be organized under the Corporation Code. As correctly mentioned by Justice Roberto
A. Abad, the sui generis character of PNRC requires us to approach controversies involving
the PNRC on a case-to-case basis.
In sum, the PNRC enjoys a special status as an important ally and auxiliary of the
government in the humanitarian field in accordance with its commitments under
international law. This Court cannot all of a sudden refuse to recognize its existence,
especially since the issue of the constitutionality of the PNRC Charter was never raised by
the parties. It bears emphasizing that the PNRC has responded to almost all national
disasters since 1947, and is widely known to provide a substantial portion of the country’s
blood requirements. Its humanitarian work is unparalleled. The Court should not shake its
existence to the core in an untimely and drastic manner that would not only have negative
consequences to those who depend on it in times of disaster and armed hostilities but also
have adverse effects on the image of the Philippines in the international community. The
sections of the PNRC Charter that were declared void must therefore stay.
WHEREFORE, premises considered, respondent Richard J. Gordon’s Motion for

Clarification and/or for Reconsideration and movant-intervenor PNRC’s Motion for Partial
Reconsideration of the Decision in G.R. No. 175352 dated July 15, 2009 are GRANTED.
The constitutionality of R.A. No. 95, as amended, the charter of the Philippine National Red
Cross, was not raised by the parties as an issue and should not have been passed upon by
this Court. The structure of the PNRC is sui generis¸ being neither strictly private nor public
in nature. R.A. No. 95 remains valid and constitutional in its entirety. The dispositive portion
of the Decision should therefore be MODIFIED by deleting the second sentence, to now
read as follows:
WHEREFORE, we declare that the office of the Chairman of the Philippine National Red
Cross is not a government office or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO

Associate Justice
DISSENTING OPINION
CARPIO, J.:
I vote to deny the motions for reconsideration filed by Respondent Richard J. Gordon
(respondent Gordon) and movant-intervenor Philippine National Red Cross (PNRC).
Respondent Gordon and the PNRC seek partial reconsideration of the Court’s Decision
dated 15 July 2009, declaring that Republic Act No. 95 (RA 95), insofar as it creates the
PNRC as a private corporation and grants it corporate powers, is void for being
unconstitutional. The Decision also declared that the Office of the Chairman of the PNRC is
not a government office or an office in a government-owned or controlled corporation for
purposes of the prohibition in Section 13, Article VI of the 1987 Constitution, which reads:
SEC. 13. No Senator or Member of the House of Representatives may hold any other office
or employment in the Government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries, during his term
without forfeiting his seat. Neither shall he be appointed to any office which may have been
created or the emoluments thereof increased during the term for which he was elected.
Respondent Gordon and the PNRC are seeking reconsideration of the portion of the
Decision relating to the unconstitutionality of certain provisions of RA 95.
This case originated from a petition filed by petitioners, seeking to declare respondent
Gordon as having forfeited his seat in the Senate when he accepted the chairmanship of
the PNRC Board of Governors.
In the assailed Decision, this Court held that the PNRC is a private organization performing
public functions. The Philippine government does not own or control the PNRC and neither
the President nor the head of any department, agency, commission or board appoints the
PNRC Chairman. Thus, the prohibition in Section 13, Article VI of the 1987 Constitution is
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not applicable to the office of the PNRC Chairman, which is not a government office or an
office in a government-owned or controlled corporation.
Since the PNRC is a private corporation, the creation of the PNRC through a special charter
is violative of the constitutional proscription against the creation of private corporations by
special law. The creation of the PNRC by special charter on 22 March 1947 through RA 95
contravenes Section 7, Article XIV of the 1935 Constitution, as amended, which reads:
organization, or regulation of private corporations, unless such corporations are owned or
controlled by the Government or any subdivision or instrumentality thereof.
This provision prohibiting Congress from creating private corporations, except by general
law, is reiterated in the 19731 and 19872 Constitutions.
In its Motion for Partial Reconsideration, the PNRC maintains that the decision declaring
unconstitutional certain provisions of RA 95 deprived the PNRC of its right to due process
considering that the PNRC was not a party to the case. Furthermore, the PNRC states that
the constitutionality of RA 95 was never an issue in the case. Similarly, respondent Gordon
posits in his Motion for Clarification and Reconsideration that the Court should not have
passed upon the constitutionality of RA 95 since such issue was not raised by the parties.
Generally, the Court will not pass upon a constitutional question unless such question is
raised by the parties.3 However, as explained by the Court in Fabian v. Hon. Desierto,4 the
rule that a challenge on constitutional grounds must be raised by a party to the case is not
an inflexible rule. In the Fabian case, the issue of the constitutionality of Section 27 of
Republic Act No. 67705 (RA 6770) was not presented as an issue by the parties.
Nevertheless, the Court ruled that Section 27 of RA 6770, which provides for appeals in
administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court,
infringes on the constitutional proscription against laws increasing the appellate jurisdiction
of the Supreme Court without its advice and consent.
In this case, the constitutional issue was inevitably thrust upon the Court upon its finding
that the PNRC is a private corporation, whose creation by a special charter is proscribed by
the Constitution. In view of the Court’s finding that the PNRC is a private corporation, it was
imperative for the Court to address the issue of the creation of the PNRC through a special
charter. The Constitution prohibits the creation of a private corporation through a special
law. The Court could not declare the PNRC a private corporation created by the special law
RA 95 without running afoul of Section 16, Article XII of the 1987 Constitution. To declare
the PNRC a private corporation necessarily meant declaring RA 95 unconstitutional. To
declare the PNRC, a creation of RA 95, a private corporation without declaring RA 95
unconstitutional would mean that Congress can create a private corporation through a
special law. This the Court could not do.
The fact that the constitutionality of RA 95 has not been questioned for more than sixty (60)
years does not mean that it could no longer be declared unconstitutional. One is not
estopped from assailing the validity of a law just because such law has been relied upon in
the past and all that time has not been attacked as unconstitutional. 6 Indeed, there is no
prescription to declare a law unconstitutional. Thus, in the case of Moldex Realty, Inc. v.
Housing and Land Use Regulatory Board,7 this Court held that constitutional challenge can
be made anytime:
That the question of constitutionality has not been raised before is not a valid reason
for refusing to allow it to be raised later. A contrary rule would mean that a law,
otherwise unconstitutional, would lapse into constitutionality by the mere failure of the
proper party to promptly file a case to challenge the same. (Emphasis supplied)
More importantly, the Court granted the PNRC’s motion to intervene and the PNRC
then filed its Motion for Partial Reconsideration, in which the PNRC argued that its
charter is valid and constitutional. Thus, the PNRC, the entity that is directly affected
by the issue of the constitutionality of RA 95, is in law and in fact a party to this case,
raising specifically the issue that its charter is valid and constitutional. Moreover,
although the original parties did not raise as an issue the constitutionality of RA 95, they
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were still afforded the opportunity to be heard on this constitutional issue when they filed
their respective motions for reconsideration.
In its Motion for Partial Reconsideration, the PNRC claims that the constitutional
proscription against the creation of private corporations by special law is not applicable in
this case since the PNRC was not created by Congress but by then President Ferdinand
Marcos, who issued Presidential Decree No. 1264 8 (PD 1264) which repealed RA 95. The
PNRC insists that PD 1264 repealed and superseded RA 95. The PNRC maintains that
since PD 1264 was issued by President Marcos in the exercise of his legislative power
during the martial law period pursuant to Proclamation 1081, then the constitutional
prohibition does not apply. Respondent Gordon agrees with the position taken by the
PNRC.
I disagree. Even if the PNRC derived its existence from PD 1264, still the constitutional
prohibition will apply. President Marcos issued PD 1264 on 5 December 1977 during martial
law period when the President assumed extensive legislative power. Such assumption of
legislative power did not place President Marcos above the Constitution. President Marcos
could not issue decrees or orders contrary to the provisions of the Constitution. The
exercise of legislative power by President Marcos under martial law must still be in
accordance with the Constitution because legislative power cannot be exercised in violation
of the Constitution from which legislative power draws its existence. The limits on legislative
power is explained by the Court in Government v. Springer,9 thus:
Someone has said that the powers of the legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional governments, however, as well
as governments acting under delegated authority, the powers of each of the
departments of the same are limited and confined within the four wall of the
constitution or the charter, and each department can only exercise such powers as
are expressly given and such other powers as are necessarily implied from the given
powers. The constitution is the shore of legislative authority against which the waves
of legislative enactment may dash, but over which it cannot leap. (Emphasis supplied)
The 1973 Constitution, as amended, was in force when President Marcos issued PD 1264.
Under Section 1, Article VIII of the 1973 Constitution, legislative power is vested in the
National Assembly. By virtue of Amendment No. 6 10 of the 1973 Constitution, the President
was granted legislative power. Thus, under Amendment No. 6, President Marcos was
granted concurrent legislative authority with the interim Batasang Pambansa. 11 Considering
that the legislative power of the interim Batasang Pambansa and the regular National
Assembly is subject to the limitations imposed by the Constitution, then more so for the
emergency legislative power granted to the President during the period of martial law. In
fact, the Court has declared void several Presidential Decrees or provisions thereof for
being unconstitutional.
In Demetria v. Alba,12 the Court declared void Paragraph 1 of Section 44 of PD 1177 for

being unconstitutional since it empowers the President to indiscriminately transfer funds and
unduly extends the privilege granted under Section 16(5), Article VIII of the 1973
Constitution. In Export Processing Zone Authority v. Judge Dulay,13 the Court held that PD
1533 is unconstitutional because it deprives the courts of their function of determining just
compensation in eminent domain cases and eliminates the courts’ discretion to appoint
commissioners pursuant to Rule 67 of the Rules of Court. In subsequent cases, similar
provisions on just compensation found in expropriation laws such as PD 42, 76, 464, 794,
1224, 1259, 1313, and 1517 were also declared void and unconstitutional for the same
reason and for being violative of due process. 14 In Tuason v. Register of Deeds, Caloocan
City,15 PD 293 was declared void and unconstitutional since it allows the President to
exercise judicial function and to take property without due process and without
compensation. In Manotok v. National Housing Authority,16 the Court held that PD 1669 and
1670, which expropriated certain properties, were void and unconstitutional for violating due
process of law.
In this case, PD 1264 contravenes Section 4, Article XIV of the 1973 Constitution which
provides that " the National Assembly shall not, except by general law, provide for the
formation, organization, or regulation of private corporations, unless such corporations are
owned or controlled by the government or any subdivision or instrumentality thereof." This
Josef Elvin Campos
same prohibition is found in Section 16, Article XII of the present Constitution. Thus, just like
RA 95, PD 1264 is also void insofar as it creates the PNRC as a private corporation.
The PNRC further submits that "due to its peculiar nature, it should be considered as
a private, neutral and separate entity independent of government control and supervision,
but acting as an auxiliary to government when performing humanitarian functions, and
specially created pursuant to the treaty obligations of the Philippines to the Geneva
Conventions."17 Thus, the PNRC maintains that its structure is sui generis and that it is not
strictly private in character since it performs certain governmental functions. The PNRC
posits that its argument is reinforced by the Position Paper 18 dated 7 December 2009 of the
International Federation of Red Cross and Red Crescent Societies ("International
Federation"), which reads in part:
A National Society PARTAKES OF A SUI GENERIS CHARACTER. It is a protected

component of the Red Cross Movement under Articles 24 and 26 of the First Geneva
Convention, especially in times of armed conflict. These provisions require that the staff of a
National Society shall be respected and protected in all circumstances. Such protection is
not ordinarily afforded by an international treaty to ordinary private entities or even non-
governmental organizations (NGOs). This sui generis character is also emphasized by the
Fourth Geneva Convention which holds that an Occupying Property cannot require any
change in the personnel or structure of a National Society. National Societies are therefore
organizations that are directly regulated by international humanitarian law, in contrast to
other ordinary private entities, including NGOs
xxx
Once recognized by its Government as an independent National Society auxiliary to the
public authorities in humanitarian field, a National Society, if it fulfills the ten (10) conditions
for recognition, can be recognized by the International Committee of the Red Cross and be
admitted as member of the International Federation of the Red Cross and Red Crescent
Societies. No other organization belongs to a world-wide Movement in which all Societies
have equal status and share equal responsibilities and duties in helping each other. This is
considered to be the essence of the Fundamental Principle of Universality.
Furthermore, the National Societies are considered to be auxiliaries to the public authorities
in the humanitarian field. The concept of National Societies auxiliary to the public authorities
was reaffirmed in Resolution 3 of the 30 th International Conference of the Red Cross and
Red Crescent, on 26-30 November 2007. This status, as you may see, is not only a positive
and distinct feature of any organization, but it is a precondition of its existence and
functioning as a member of the International Red Cross and Red Crescent Movement.
The auxiliary status of Red Cross Society means that it is at one and the same time a
private institution and a public service organization because the very nature of its
work implies cooperation with the authorities, a link with the State. In carrying out their
major functions, Red Cross Societies give their humanitarian support to official bodies, in
general having larger resources than the Societies, working towards comparable ends in a
given sector.
This is also the essence of the Fundamental Principle of Independence. No other

humanitarian organization gives such interpretation to its independence, although many
claim that they are independent. No other organization has a duty to be its
government’s humanitarian partner while remaining independent.
The Movement places much importance on the Principle of Independence and the
duty of the States Parties to the Geneva Conventions to respect the adherence by all
the components of the Movement to the Fundamental Principles. Before it can be
recognized by the International Committee, a National Society must have
autonomous status which allows it to operate in conformity with the Fundamental
Principles of the Movement.
Thus, in protecting the independence of the National Society in carrying out its
humanitarian mission in a neutral and impartial manner, it is crucial that it must be
free from any form of intervention from the government at the level of the internal
organization of the National Society mainly its governance and management
structure. (Boldfacing supplied. Underscoring in the original.)
Josef Elvin Campos
All private charitable organizations are doing public service or activities that also constitute
governmental functions.19 Hence, the PNRC cannot claim that it is sui generis just because
it is a private organization performing certain public or governmental functions. That the
PNRC is rendering public service does not exempt it from the constitutional prohibition
against the creation of a private corporation through a special law since the PNRC is,
admittedly, still a private organization. The express prohibition against the creation of
private corporations by special charter under Section 16, Article XII of the 1987 Constitution
cannot be disregarded just because a private corporation claims to be sui generis. The
constitutional prohibition admits of no exception.
Even the International Federation specifies the nature of the National Red Cross Society as
a "private institution and a public service organization." Furthermore, it emphasizes
the importance of maintaining and protecting the independence of the National
Society, free from any form of intervention from the government particularly
concerning its governance and management structure. Full independence means that
the National Societies are prohibited from being owned or controlled by their host
government or from becoming government instrumentalities as this would undermine their
independence, neutrality, and autonomy.
Indeed, the PNRC, as a member National Society of the International Red Cross and Red
Crescent Movement (Movement) must meet the stringent requirement of independence,
autonomy, and neutrality in order to be recognized as a National Society by the
International Committee of the Red Cross (ICRC). The conditions for recognition of National
Societies are enumerated in Article 4 of the Statutes of the Movement, thus:
Article 4
Conditions for Recognition of National Societies
In order to be recognized in terms of Article 5, paragraph 2 b) 20 as a National Society,
the Society shall meet the following conditions:
1. Be constituted on the territory of an independent State where the Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field is in force.
2. Be the only National Red Cross or Red Crescent Society of the said State and be
directed by a central body which shall alone be competent to represent it in its
dealings with other components of the Movement.
3. Be duly recognized by the legal government of its country on the basis of
the Geneva Conventions and of the national legislation as a voluntary aid
society, auxiliary to the public authorities in the humanitarian field.
4. Have an autonomous status which allows it to operate in conformity with the
Fundamental Principles of the Movement.
5. Use a name and distinctive emblem in conformity with the Geneva
Conventions and their Additional Protocols.
6. Be so organized as to be able to fulfil the tasks defined in its own statutes,
including the preparation in peace time for its statutory tasks in case of armed
conflict.
7. Extend its activities to the entire territory of the State.
8. Recruit its voluntary members and its staff without consideration of race, sex,
class, religion or political opinions.
9. Adhere to the present Statutes, share in the fellowship which unites the
components of the Movement and cooperate with them.
10. Respect the Fundamental Principles of the Movement and be guided in its work
by the principles of international humanitarian law. 21
The conditions for recognition of National Societies do not require that the State
itself create the National Society through a special charter. The absence of such
requirement is proper and necessary considering the Movement’s emphasis on the
importance of maintaining the independence of the National Society, free from any form of
intervention from the government. However, it is required that the National Society be
officially recognized by the government of its country as auxiliary to the public authorities in
the humanitarian field.
Josef Elvin Campos
A decree granting official recognition to the National Society is essential in order to
distinguish it from other charitable organizations in the country and to be entitled to the
protection of the Geneva Conventions in the event of armed conflict. 22 The content of the
decree of recognition may vary from one country to another but it should explicitly specify:
1. That the National Society is the country’s only Red Cross or Red Crescent
organization;
2. That it is autonomous in relation to the State;
3. That it performs its activities in conformity with the Fundamental Principles; and
4. The conditions governing the use of the emblem. 23
Thus, there is no specific requirement for the creation of the National Society
through a special charter. The State does not have the obligation to create the National
Society, in our case, the PNRC. What is important is that the National Society is officially
recognized by the government as auxiliary to the public authorities in the humanitarian
services of the government. This the Philippine government can accomplish even without
creating the PNRC through a special charter.
Besides, as auxiliaries in the humanitarian services of their host governments, the National

Societies are subject to the laws of their respective countries.24 Thus, the National
Societies are bound by the laws of their host countries and must submit to the Constitution
of their respective host countries.
The Philippine Constitution prohibits Congress from creating private corporations except by
general law. I agree with the PNRC that it is a private organization performing public
functions. Precisely because it is a private organization, the PNRC charter – whether it be
RA 95 or PD 1264 – is violative of the constitutional proscription against the creation of
private corporations by special law. Nevertheless, keeping in mind the treaty obligations of
the Philippines under the Geneva Conventions, the assailed Decision only held void those
provisions of the PNRC charter which create PNRC as a private corporation or grant it
corporate powers. The other provisions respecting the government’s treaty obligations
remain valid, thus:
The other provisions25 of the PNRC Charter remain valid as they can be considered
as a recognition by the State that the unincorporated PNRC is the local National
Society of the International Red Cross and Red Crescent Movement, and thus entitled
to the benefits, exemptions and privileges set forth in the PNRC Charter. The other
provisions of the PNRC Charter implement the Philippine Government’s treaty obligations
under Article 4(5) of the Statutes of the International Red Cross and Red Crescent
Movement, which provides that to be recognized as a National Society, the Society must be
"duly recognized by the legal government of its country on the basis of the Geneva
Conventions and of the national legislation as a voluntary aid society, auxiliary to the public
authorities in the humanitarian field." 26 (Emphasis supplied)
This Court’s paramount duty is to faithfully apply the provisions of the Constitution to the
present case. The Constitutional prohibition under Section 16, Article XII of the 1987
Constitution is clear, categorical, and absolute:
SEC. 16. The Congress, shall not, except by general law, provide for the formation,
common good and subject to the test of economic viability. (Emphasis supplied)
Since the constitutional prohibition admits of no exception, this Court has no recourse but to
apply the prohibition to the present case. This Court has no power to make PNRC an
exception to Section 16, Article XII of the 1987 Constitution.
The PNRC could either choose to remain unincorporated or it could adopt its own articles of
incorporation and by-laws and incorporate under the Corporation Code and register with the
Securities and Exchange Commission if it wants to be a private corporation.
Accordingly, I vote to DENY the Motions for Reconsideration.
ANTONIO T. CARPIO
Associate Justice
Josef Elvin Campos
Philippine Society for the Prevention of Cruelty to Animals v. Commission
on Audit, et al. (G.R. No. 169752, 25 September 2007)
[G.R. NO. 169752 : September 25, 2007]
PHILIPPINE SOCIETY FOR THE PREVENTION OF CRUELTY TO
ANIMALS, Petitioners, v. COMMISSION ON AUDIT, DIR. RODULFO J. ARIESGA (in his
official capacity as Director of the Commission on Audit), MS. MERLE M. VALENTIN
and MS. SUSAN GUARDIAN (in their official capacities as Team Leader and Team
Member, respectively, of the audit Team of the Commission on Audit), Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a special civil action for Certiorari and Prohibition under Rule 65 of the
Rules of Court, in relation to Section 2 of Rule 64, filed by the petitioner assailing Office
Order No. 2005-0211 dated September 14, 2005 issued by the respondents which
constituted the audit team, as well as its September 23, 2005 Letter 2 informing the petitioner
that respondents' audit team shall conduct an audit survey on the petitioner for a detailed
audit of its accounts, operations, and financial transactions. No temporary restraining order
was issued.
The petitioner was incorporated as a juridical entity over one hundred years ago by virtue of
Act No. 1285, enacted on January 19, 1905, by the Philippine Commission. The petitioner,
at the time it was created, was composed of animal aficionados and animal propagandists.
The objects of the petitioner, as stated in Section 2 of its charter, shall be to enforce laws
relating to cruelty inflicted upon animals or the protection of animals in the Philippine
Islands, and generally, to do and perform all things which may tend in any way to alleviate
the suffering of animals and promote their welfare. 3
At the time of the enactment of Act No. 1285, the original Corporation Law, Act No. 1459,
was not yet in existence. Act No. 1285 antedated both the Corporation Law and the
constitution of the Securities and Exchange Commission. Important to note is that the
nature of the petitioner as a corporate entity is distinguished from the sociedad
anonimas under the Spanish Code of Commerce.
For the purpose of enhancing its powers in promoting animal welfare and enforcing laws for
the protection of animals, the petitioner was initially imbued under its charter with the power
to apprehend violators of animal welfare laws. In addition, the petitioner was to share one-
half (1/2) of the fines imposed and collected through its efforts for violations of the laws
related thereto. As originally worded, Sections 4 and 5 of Act No. 1285 provide:
SEC. 4. The said society is authorized to appoint not to exceed five agents in the City of
Manila, and not to exceed two in each of the provinces of the Philippine Islands who shall
have all the power and authority of a police officer to make arrests for violation of the
laws enacted for the prevention of cruelty to animals and the protection of animals, and to
serve any process in connection with the execution of such laws; and in addition thereto, all
the police force of the Philippine Islands, wherever organized, shall, as occasion requires,
assist said society, its members or agents, in the enforcement of all such laws.
SEC. 5. One-half of all the fines imposed and collected through the efforts of said society,
its members or its agents, for violations of the laws enacted for the prevention of cruelty to
animals and for their protection, shall belong to said society and shall be used to promote
its objects.
(emphasis supplied)
Subsequently, however, the power to make arrests as well as the privilege to retain a
portion of the fines collected for violation of animal-related laws were recalled by virtue of
Commonwealth Act (C.A.) No. 148,4 which reads, in its entirety, thus:
Be it enacted by the National Assembly of the Philippines:
Josef Elvin Campos
Section 1. Section four of Act Numbered Twelve hundred and eighty-five as amended by
Act Numbered Thirty five hundred and forty-eight, is hereby further amended so as to read
as follows:
Sec. 4. The said society is authorized to appoint not to exceed ten agents in the City of
Manila, and not to exceed one in each municipality of the Philippines who shall have the
authority to denounce to regular peace officers any violation of the laws enacted for the
prevention of cruelty to animals and the protection of animals and to cooperate with said
peace officers in the prosecution of transgressors of such laws.
Sec. 2. The full amount of the fines collected for violation of the laws against cruelty to
animals and for the protection of animals, shall accrue to the general fund of the
Municipality where the offense was committed.
Sec. 3. This Act shall take effect upon its approval.
Approved, November 8, 1936. (Emphasis supplied)
Immediately thereafter, then President Manuel L. Quezon issued Executive Order (E.O.)
No. 63 dated November 12, 1936, portions of which provide:
Whereas, during the first regular session of the National Assembly, Commonwealth Act
Numbered One Hundred Forty Eight was enacted depriving the agents of the Society for
the Prevention of Cruelty to Animals of their power to arrest persons who have violated the
laws prohibiting cruelty to animals thereby correcting a serious defect in one of the laws
existing in our statute books.
xxx
Whereas, the cruel treatment of animals is an offense against the State, penalized under
our statutes, which the Government is duty bound to enforce;
Now, therefore, I, Manuel L. Quezon, President of the Philippines, pursuant to the authority
conferred upon me by the Constitution, hereby decree, order, and direct the Commissioner
of Public Safety, the Provost Marshal General as head of the Constabulary Division of the
Philippine Army, every Mayor of a chartered city, and every municipal president to detail
and organize special members of the police force, local, national, and the Constabulary to
watch, capture, and prosecute offenders against the laws enacted to prevent cruelty to
animals. (Emphasis supplied)
On December 1, 2003, an audit team from respondent Commission on Audit (COA) visited
the office of the petitioner to conduct an audit survey pursuant to COA Office Order No.
2003-051 dated November 18, 20035 addressed to the petitioner. The petitioner demurred
on the ground that it was a private entity not under the jurisdiction of COA, citing Section
2(1) of Article IX of the Constitution which specifies the general jurisdiction of the COA, viz:
Section 1. General Jurisdiction. The Commission on Audit shall have the power, authority,
and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts
of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining
to the Government, or any of its subdivisions, agencies, or instrumentalities, including
government-owned and controlled corporations with original charters, and on a post-audit
basis: (a) constitutional bodies, commissions and officers that have been granted fiscal
autonomy under the Constitution; (b) autonomous state colleges and universities; (c) other
government-owned or controlled corporations and their subsidiaries; and (d) such non-
governmental entities receiving subsidy or equity, directly or indirectly, from or through the
government, which are required by law or the granting institution to submit to such audit as
a condition of subsidy or equity. However, where the internal control system of the audited
agencies is inadequate, the Commission may adopt such measures, including temporary or
special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep
the general accounts of the Government, and for such period as may be provided by law,
preserve the vouchers and other supporting papers pertaining thereto. (Emphasis supplied)
Petitioner explained thus:
A. Although the petitioner was created by special legislation, this necessarily came about
because in January 1905 there was as yet neither a Corporation Law or any other general
Josef Elvin Campos
law under which it may be organized and incorporated, nor a Securities and Exchange
Commission which would have passed upon its organization and incorporation.
b. That Executive Order No. 63, issued during the Commonwealth period, effectively
deprived the petitioner of its power to make arrests, and that the petitioner lost its
operational funding, underscore the fact that it exercises no governmental function. In fine,
the government itself, by its overt acts, confirmed petitioner's status as a private juridical
entity.
The COA General Counsel issued a Memorandum6 dated May 6, 2004, asserting that the
petitioner was subject to its audit authority. In a letter dated May 17, 2004, 7 respondent
COA informed the petitioner of the result of the evaluation, furnishing it with a copy of said
Memorandum dated May 6, 2004 of the General Counsel.
Petitioner thereafter filed with the respondent COA a Request for Re-evaluation dated May
19, 2004,8 insisting that it was a private domestic corporation.
Acting on the said request, the General Counsel of respondent COA, in a Memorandum
dated July 13, 2004,9 affirmed her earlier opinion that the petitioner was a government entity
that was subject to the audit jurisdiction of respondent COA. In a letter dated September 14,
2004, the respondent COA informed the petitioner of the result of the re-evaluation,
maintaining its position that the petitioner was subject to its audit jurisdiction, and requested
an initial conference with the respondents.
In a Memorandum dated September 16, 2004, Director Delfin Aguilar reported to COA
Assistant Commissioner Juanito Espino, Corporate Government Sector, that the audit
survey was not conducted due to the refusal of the petitioner because the latter maintained
that it was a private corporation.
Petitioner received on September 27, 2005 the subject COA Office Order 2005-021 dated
September 14, 2005 and the COA Letter dated September 23, 2005.
Hence, herein Petition on the following grounds:

A.
RESPONDENT COMMISSION ON AUDIT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED
THAT PETITIONER IS SUBJECT TO ITS AUDIT AUTHORITY.
B.
PETITIONER IS ENTITLED TO THE RELIEF SOUGHT, THERE BEING NO APPEAL, NOR
ANY PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW
AVAILABLE TO IT.10
The essential question before this Court is whether the petitioner qualifies as a government
agency that may be subject to audit by respondent COA.
Petitioner argues: first, even though it was created by special legislation in 1905 as there
was no general law then existing under which it may be organized or incorporated, it
exercises no governmental functions because these have been revoked by C.A. No. 148
and E.O. No. 63; second, nowhere in its charter is it indicated that it is a public corporation,
unlike, for instance, C.A. No. 111 which created the Boy Scouts of the Philippines, defined
its powers and purposes, and specifically stated that it was "An Act to Create a Public
Corporation" in which, even as amended by Presidential Decree No. 460, the law still
adverted to the Boy Scouts of the Philippines as a "public corporation," all of which are not
obtaining in the charter of the petitioner; third, if it were a government body, there would
have been no need for the State to grant it tax exemptions under Republic Act No. 1178,
and the fact that it was so exempted strengthens its position that it is a private
institution; fourth, the employees of the petitioner are registered and covered by the Social
Security System at the latter's initiative and not through the Government Service Insurance
System, which should have been the case had the employees been considered government
employees; fifth, the petitioner does not receive any form of financial assistance from the
government, since C.A. No. 148, amending Section 5 of Act No. 1285, states that the "full
amount of the fines, collected for violation of the laws against cruelty to animals and for the
protection of animals, shall accrue to the general fund of the Municipality where the offense
Josef Elvin Campos
was committed"; sixth, C.A. No. 148 effectively deprived the petitioner of its powers to make
arrests and serve processes as these functions were placed in the hands of the police
force; seventh, no government appointee or representative sits on the board of trustees of
the petitioner; eighth, a reading of the provisions of its charter (Act No. 1285) fails to show
that any act or decision of the petitioner is subject to the approval of or control by any
government agency, except to the extent that it is governed by the law on private
corporations in general; and finally, ninth, the Committee on Animal Welfare, under the
Animal Welfare Act of 1998, includes members from both the private and the public sectors.
The respondents contend that since the petitioner is a "body politic" created by virtue of a
special legislation and endowed with a governmental purpose, then, indubitably, the COA
may audit the financial activities of the latter. Respondents in effect divide their contentions
into six strains: first, the test to determine whether an entity is a government corporation lies
in the manner of its creation, and, since the petitioner was created by virtue of a special
charter, it is thus a government corporation subject to respondents' auditing power; second,
the petitioner exercises "sovereign powers," that is, it is tasked to enforce the laws for the
protection and welfare of animals which "ultimately redound to the public good and welfare,"
and, therefore, it is deemed to be a government "instrumentality" as defined under the
Administrative Code of 1987, the purpose of which is connected with the administration of
government, as purportedly affirmed by American jurisprudence; third, by virtue of Section
23,11 Title II, Book III of the same Code, the Office of the President exercises supervision or
control over the petitioner; fourth, under the same Code, the requirement under its special
charter for the petitioner to render a report to the Civil Governor, whose functions have been
inherited by the Office of the President, clearly reflects the nature of the petitioner as a
government instrumentality; fifth, despite the passage of the Corporation Code, the law
creating the petitioner had not been abolished, nor had it been re-incorporated under any
general corporation law; and finally, sixth, Republic Act No. 8485, otherwise known as the
"Animal Welfare Act of 1998," designates the petitioner as a member of its Committee on
Animal Welfare which is attached to the Department of Agriculture.
In view of the phrase "One-half of all the fines imposed and collected through the efforts of
said society," the Court, in a Resolution dated January 30, 2007, required the Office of the
Solicitor General (OSG) and the parties to comment on: a) petitioner's authority to impose
fines and the validity of the provisions of Act No. 1285 and Commonwealth Act No. 148
considering that there are no standard measures provided for in the aforecited laws as to
the manner of implementation, the specific violations of the law, the person/s authorized to
impose fine and in what amount; and, b) the effect of the 1935 and 1987 Constitutions on
whether petitioner continues to exist or should organize as a private corporation under the
Corporation Code, B.P. Blg. 68 as amended.
Petitioner and the OSG filed their respective Comments. Respondents filed a Manifestation
stating that since they were being represented by the OSG which filed its Comment, they
opted to dispense with the filing of a separate one and adopt for the purpose that of the
OSG.
The petitioner avers that it does not have the authority to impose fines for violation of animal
welfare laws; it only enjoyed the privilege of sharing in the fines imposed and collected from
its efforts in the enforcement of animal welfare laws; such privilege, however, was
subsequently abolished by C.A. No. 148; that it continues to exist as a private corporation
since it was created by the Philippine Commission before the effectivity of the Corporation
law, Act No. 1459; and the 1935 and 1987 Constitutions.
The OSG submits that Act No. 1285 and its amendatory laws did not give petitioner the
authority to impose fines for violation of laws 12 relating to the prevention of cruelty to
animals and the protection of animals; that even prior to the amendment of Act No. 1285,
petitioner was only entitled to share in the fines imposed; C.A. No. 148 abolished that
privilege to share in the fines collected; that petitioner is a public corporation and has
continued to exist since Act No. 1285; petitioner was not repealed by the 1935 and 1987
Constitutions which contain transitory provisions maintaining all laws issued not inconsistent
therewith until amended, modified or repealed.
The petition is impressed with merit.

The arguments of the parties, interlaced as they are, can be disposed of in five points.
Josef Elvin Campos
First, the Court agrees with the petitioner that the "charter test" cannot be applied.
Essentially, the "charter test" as it stands today provides:
[T]he test to determine whether a corporation is government owned or controlled, or private

in nature is simple. Is it created by its own charter for the exercise of a public function, or by
incorporation under the general corporation law? Those with special charters are
government corporations subject to its provisions, and its employees are under the
jurisdiction of the Civil Service Commission, and are compulsory members of the
Government Service Insurance System. xxx (Emphasis supplied)13
The petitioner is correct in stating that the charter test is predicated, at best, on the legal
regime established by the 1935 Constitution, Section 7, Article XIII, which states:
Sec. 7. The National Assembly shall not, except by general law, provide for the formation,
organization, or regulation of private corporations, unless such corporations are owned or
controlled by the Government or any subdivision or instrumentality thereof. 14
The foregoing proscription has been carried over to the 1973 and the 1987 Constitutions.
Section 16 of Article XII of the present Constitution provides:
Sec. 16. The Congress shall not, except by general law, provide for the formation,
common good and subject to the test of economic viability.
Section 16 is essentially a re-enactment of Section 7 of Article XVI of the 1935 Constitution

and Section 4 of Article XIV of the 1973 Constitution.
During the formulation of the 1935 Constitution, the Committee on Franchises

recommended the foregoing proscription to prevent the pressure of special interests upon
the lawmaking body in the creation of corporations or in the regulation of the same. To
permit the lawmaking body by special law to provide for the organization, formation, or
regulation of private corporations would be in effect to offer to it the temptation in many
cases to favor certain groups, to the prejudice of others or to the prejudice of the interests of
the country.15
And since the underpinnings of the charter test had been introduced by the 1935
Constitution and not earlier, it follows that the test cannot apply to the petitioner, which was
incorporated by virtue of Act No. 1285, enacted on January 19, 1905. Settled is the rule that
laws in general have no retroactive effect, unless the contrary is provided. 16 All statutes are
to be construed as having only a prospective operation, unless the purpose and intention of
the legislature to give them a retrospective effect is expressly declared or is necessarily
implied from the language used. In case of doubt, the doubt must be resolved against the
retrospective effect.17
There are a few exceptions. Statutes can be given retroactive effect in the following cases:
(1) when the law itself so expressly provides; (2) in case of remedial statutes; (3) in case of
curative statutes; (4) in case of laws interpreting others; and (5) in case of laws creating
new rights.18 None of the exceptions is present in the instant case.
The general principle of prospectivity of the law likewise applies to Act No. 1459, otherwise
known as the Corporation Law, which had been enacted by virtue of the plenary powers of
the Philippine Commission on March 1, 1906, a little over a year after January 19, 1905, the
time the petitioner emerged as a juridical entity. Even the Corporation Law respects the
rights and powers of juridical entities organized beforehand, viz:
SEC. 75. Any corporation or sociedad anonima formed, organized, and existing under the
laws of the Philippine Islands and lawfully transacting business in the Philippine Islands on
the date of the passage of this Act, shall be subject to the provisions hereof so far as such
provisions may be applicable and shall be entitled at its option either to continue business
as such corporation or to reform and organize under and by virtue of the provisions of this
Act, transferring all corporate interests to the new corporation which, if a stock corporation,
Josef Elvin Campos
is authorized to issue its shares of stock at par to the stockholders or members of the old
corporation according to their interests. (Emphasis supplied).
As pointed out by the OSG, both the 1935 and 1987 Constitutions contain transitory
provisions maintaining all laws issued not inconsistent therewith until amended, modified or
repealed.19
In a legal regime where the charter test doctrine cannot be applied, the mere fact that a
corporation has been created by virtue of a special law does not necessarily qualify it as a
public corporation.
What then is the nature of the petitioner as a corporate entity? What legal regime governs
its rights, powers, and duties?
As stated, at the time the petitioner was formed, the applicable law was the Philippine Bill of
1902, and, emphatically, as also stated above, no proscription similar to the charter test can
be found therein.
The textual foundation of the charter test, which placed a limitation on the power of the
legislature, first appeared in the 1935 Constitution. However, the petitioner was
incorporated in 1905 by virtue of Act No. 1258, a law antedating the Corporation Law (Act
No. 1459) by a year, and the 1935 Constitution, by thirty years. There being neither a
general law on the formation and organization of private corporations nor a restriction on the
legislature to create private corporations by direct legislation, the Philippine Commission at
that moment in history was well within its powers in 1905 to constitute the petitioner as a
private juridical entity.
Time and again the Court must caution even the most brilliant scholars of the law and all
constitutional historians on the danger of imposing legal concepts of a later date on facts of
an earlier date.20
The amendments introduced by C.A. No. 148 made it clear that the petitioner was a private
corporation and not an agency of the government. This was evident in Executive Order No.
63, issued by then President of the Philippines Manuel L. Quezon, declaring that the
revocation of the powers of the petitioner to appoint agents with powers of arrest "corrected
a serious defect" in one of the laws existing in the statute books.
As a curative statute, and based on the doctrines so far discussed, C.A. No. 148 has to be
given retroactive effect, thereby freeing all doubt as to which class of corporations the
petitioner belongs, that is, it is a quasi-public corporation, a kind of private domestic
corporation, which the Court will further elaborate on under the fourth point.
Second, a reading of petitioner's charter shows that it is not subject to control or supervision
by any agency of the State, unlike government-owned and -controlled corporations. No
government representative sits on the board of trustees of the petitioner. Like all private
corporations, the successors of its members are determined voluntarily and solely by the
petitioner in accordance with its by-laws, and may exercise those powers generally
accorded to private corporations, such as the powers to hold property, to sue and be sued,
to use a common seal, and so forth. It may adopt by-laws for its internal operations: the
petitioner shall be managed or operated by its officers "in accordance with its by-laws in
force." The pertinent provisions of the charter provide:
Section 1. Anna L. Ide, Kate S. Wright, John L. Chamberlain, William F. Tucker, Mary S.
Fergusson, Amasa S. Crossfield, Spencer Cosby, Sealy B. Rossiter, Richard P. Strong,
Jose Robles Lahesa, Josefina R. de Luzuriaga, and such other persons as may be
associated with them in conformity with this act, and their successors, are hereby
constituted and created a body politic and corporate at law, under the name and style of
"The Philippines Society for the Prevention of Cruelty to Animals."
As incorporated by this Act, said society shall have the power to add to its organization such
and as many members as it desires, to provide for and choose such officers as it may deem
advisable, and in such manner as it may wish, and to remove members as it shall provide.
Josef Elvin Campos
It shall have the right to sue and be sued, to use a common seal, to receive legacies and
donations, to conduct social enterprises for the purpose of obtaining funds, to levy dues
upon its members and provide for their collection to hold real and personal estate such as
may be necessary for the accomplishment of the purposes of the society, and to adopt such
by-laws for its government as may not be inconsistent with law or this charter.
xxx
Sec. 3. The said society shall be operated under the direction of its officers, in accordance
with its by-laws in force, and this charter.
xxx
Sec. 6. The principal office of the society shall be kept in the city of Manila, and the society
shall have full power to locate and establish branch offices of the society wherever it may
deem advisable in the Philippine Islands, such branch offices to be under the supervision
and control of the principal office.
Third. The employees of the petitioner are registered and covered by the Social Security
System at the latter's initiative, and not through the Government Service Insurance System,
which should be the case if the employees are considered government employees. This is
another indication of petitioner's nature as a private entity. Section 1 of Republic Act No.
1161, as amended by Republic Act No. 8282, otherwise known as the Social Security Act of
1997, defines the employer:
Employer - Any person, natural or juridical, domestic or foreign, who carries on in the
Philippines any trade, business, industry, undertaking or activity of any kind and uses the
services of another person who is under his orders as regards the employment, except the
Government and any of its political subdivisions, branches or instrumentalities, including
corporations owned or controlled by the Government: Provided, That a self-employed
person shall be both employee and employer at the same time. (Emphasis supplied)
Fourth. The respondents contend that the petitioner is a "body politic" because its primary
purpose is to secure the protection and welfare of animals which, in turn, redounds to the
public good.
This argument, is, at best, specious. The fact that a certain juridical entity is impressed with
public interest does not, by that circumstance alone, make the entity a public corporation,
inasmuch as a corporation may be private although its charter contains provisions of a
public character, incorporated solely for the public good. This class of corporations may be
considered quasi-public corporations, which are private corporations that render public
service, supply public wants,21 or pursue other eleemosynary objectives. While purposely
organized for the gain or benefit of its members, they are required by law to discharge
functions for the public benefit. Examples of these corporations are utility, 22 railroad,
warehouse, telegraph, telephone, water supply corporations and transportation
companies.23 It must be stressed that a quasi-public corporation is a species of private
corporations, but the qualifying factor is the type of service the former renders to the
public: if it performs a public service, then it becomes a quasi-public corporation. 24
Authorities are of the view that the purpose alone of the corporation cannot be taken as a
safe guide, for the fact is that almost all corporations are nowadays created to promote the
interest, good, or convenience of the public. A bank, for example, is a private corporation;
yet, it is created for a public benefit. Private schools and universities are likewise private
corporations; and yet, they are rendering public service. Private hospitals and wards are
charged with heavy social responsibilities. More so with all common carriers. On the other
hand, there may exist a public corporation even if it is endowed with gifts or donations from
private individuals.
The true criterion, therefore, to determine whether a corporation is public or private is found
in the totality of the relation of the corporation to the State. If the corporation is created by
the State as the latter's own agency or instrumentality to help it in carrying out its
governmental functions, then that corporation is considered public; otherwise, it is private.
Applying the above test, provinces, chartered cities, and barangays can best exemplify
public corporations. They are created by the State as its own device and agency for the
accomplishment of parts of its own public works. 25
It is clear that the amendments introduced by C.A. No. 148 revoked the powers of the
petitioner to arrest offenders of animal welfare laws and the power to serve processes in
connection therewith.
Josef Elvin Campos
Fifth. The respondents argue that since the charter of the petitioner requires the latter to
render periodic reports to the Civil Governor, whose functions have been inherited by the
President, the petitioner is, therefore, a government instrumentality.
This contention is inconclusive. By virtue of the fiction that all corporations owe their very
existence and powers to the State, the reportorial requirement is applicable to all
corporations of whatever nature, whether they are public, quasi-public, or private
corporations' as creatures of the State, there is a reserved right in the legislature to
investigate the activities of a corporation to determine whether it acted within its powers. In
other words, the reportorial requirement is the principal means by which the State may see
to it that its creature acted according to the powers and functions conferred upon it. These
principles were extensively discussed in Bataan Shipyard & Engineering Co., Inc. v.
Presidential Commission on Good Government.26 Here, the Court, in holding that the
subject corporation could not invoke the right against self-incrimination whenever the State
demanded the production of its corporate books and papers, extensively discussed the
purpose of reportorial requirements, viz:
x x x The corporation is a creature of the state. It is presumed to be incorporated for the

benefit of the public. It received certain special privileges and franchises, and holds them
subject to the laws of the state and the limitations of its charter. Its powers are limited by
law. It can make no contract not authorized by its charter. Its rights to act as a corporation
are only preserved to it so long as it obeys the laws of its creation. There is a reserve[d]
right in the legislature to investigate its contracts and find out whether it has exceeded its
powers. It would be a strange anomaly to hold that a state, having chartered a corporation
to make use of certain franchises, could not, in the exercise of sovereignty, inquire how
these franchises had been employed, and whether they had been abused, and demand the
production of the corporate books and papers for that purpose. The defense amounts to
this, that an officer of the corporation which is charged with a criminal violation of the statute
may plead the criminality of such corporation as a refusal to produce its books. To state this
proposition is to answer it. While an individual may lawfully refuse to answer incriminating
questions unless protected by an immunity statute, it does not follow that a corporation
vested with special privileges and franchises may refuse to show its hand when charged
with an abuse of such privileges. (Wilson v. United States, 55 Law Ed., 771, 780.) 27
WHEREFORE, the petition is GRANTED. Petitioner is DECLARED a private domestic
corporation subject to the jurisdiction of the Securities and Exchange Commission. The
respondents are ENJOINED from investigating, examining and auditing the petitioner's
fiscal and financial affairs.
SO ORDERED.
The Province of North Cotabato v. the Gov. of the Republic of the Phils.
Peace Panel (G.R. No. 183591, 14 October 2008)
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS
SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own
behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-
appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office
of the Presidential Adviser on the Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L.
LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident of
the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO
BASILIO A. FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO,
Josef Elvin Campos
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in
his capacity as the Presidential Adviser on Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH
CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN.
HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his
capacity as Executive Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by
HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H.
OLVIS, in his capacity as Vice-Governor and Presiding Officer of the Sangguniang
Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman,
1st Congressional District, HON. CESAR G. JALOSJOS, Congressman,
3rd Congressional District, and Members of the Sangguniang Panlalawigan of the
Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS,
HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON.
EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO,
HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON.
NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J.
CARREON and HON. LUZVIMINDA E. TORRINO, petitioners,
vs.
PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON.
HERMOGENES ESPERON, in his capacity as the Presidential Adviser of Peace
Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL
III, petitioners,
vs.
PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC
LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N.
DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN
P. SANTOS-AKBAR, petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU,
in his capacity as Provincial Governor and a resident of the Province of Sultan
Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in
Mindanao Not Belonging to the MILF, petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG
and RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-
intervention.
x--------------------------------------------x
Josef Elvin Campos
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-
intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT
(MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process. While the facts surrounding this controversy center on the
armed conflict in Mindanao between the government and the Moro Islamic Liberation Front
(MILF), the legal issue involved has a bearing on all areas in the country where there has
been a long-standing armed conflict. Yet again, the Court is tasked to perform a delicate
balancing act. It must uncompromisingly delineate the bounds within which the President
may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution,
lest its ruling unduly restricts the freedom of action vested by that same Constitution in the
Chief Executive precisely to enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF,
through the Chairpersons of their respective peace negotiating panels, were scheduled to
sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-
MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the leadership
of the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF)
then headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be
the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist
orientations.1
The signing of the MOA-AD between the GRP and the MILF was not to materialize,
however, for upon motion of petitioners, specifically those who filed their cases before the
scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of several
prior agreements between the two parties beginning in 1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the
Agreement on General Cessation of Hostilities. The following year, they signed the General
Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating
that the same contained, among others, the commitment of the parties to pursue peace
negotiations, protect and respect human rights, negotiate with sincerity in the resolution and
pacific settlement of the conflict, and refrain from the use of threat or force to attain undue
advantage while the peace negotiations on the substantive agenda are on-going. 2
Early on, however, it was evident that there was not going to be any smooth sailing in the
GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a
number of municipalities in Central Mindanao and, in March 2000, it took control of the town
hall of Kauswagan, Lanao del Norte. 3 In response, then President Joseph Estrada declared
and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive against the
MILF was suspended and the government sought a resumption of the peace talks. The
MILF, according to a leading MILF member, initially responded with deep reservation, but
when President Arroyo asked the Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the negotiating table, the MILF convened
its Central Committee to seriously discuss the matter and, eventually, decided to meet with
the GRP.4
Josef Elvin Campos
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the
Malaysian government, the parties signing on the same date the Agreement on the General
Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF
thereafter suspended all its military actions. 5
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001,
the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With
regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed
"that the same be discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which
ended with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli
Agreement 2001 leading to a ceasefire status between the parties. This was followed by the
Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of
the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia.
Nonetheless, there were many incidence of violence between government forces and the
MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he
was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF.
Murad's position as chief peace negotiator was taken over by Mohagher Iqbal. 6
In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as mentioned,
was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an
instrument - the MOA-AD which is assailed principally by the present petitions bearing
docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain 7 and
the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato 8 and Vice-Governor Emmanuel Piñol filed
a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the
Issuance of Writ of Preliminary Injunction and Temporary Restraining Order. 9 Invoking the
right to information on matters of public concern, petitioners seek to compel respondents to
disclose and furnish them the complete and official copies of the MOA-AD including its
attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of
the contents of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional. 10
This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition11 filed by the City of Zamboanga, 12 Mayor Celso Lobregat, Rep.
Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive
reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the
Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the
MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining

Order commanding and directing public respondents and their agents to cease and desist
from formally signing the MOA-AD.13 The Court also required the Solicitor General to submit
to the Court and petitioners the official copy of the final draft of the MOA-AD, 14 to which she
complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief,
docketed as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-
AD or, if the same had already been signed, from implementing the same, and that the
MOA-AD be declared unconstitutional. Petitioners herein additionally implead Executive
Secretary Eduardo Ermita as respondent.
Josef Elvin Campos
The Province of Zamboanga del Norte, 17 Governor Rolando Yebes, Vice-Governor Francis
Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members 18 of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for
Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia,
that the MOA-AD be declared null and void and without operative effect, and that
respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition for Prohibition,20 docketed as G.R. No. 183962, praying for a judgment prohibiting
and permanently enjoining respondents from formally signing and executing the MOA-AD
and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD
for being unconstitutional and illegal. Petitioners herein additionally implead as respondent
the MILF Peace Negotiating Panel represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A.
Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of
Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat 22 and Gov.
Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte, 23 Ruy Elias Lopez of
Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and
businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig,
Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace
and Development (MMMPD) filed their respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions.

Respondents filed Comments on the petitions, while some of petitioners submitted their
respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to address
the issues hurled against it, and thus moved to dismiss the cases. In the succeeding
exchange of pleadings, respondents' motion was met with vigorous opposition from
petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the
following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the disclosure of
official copies of the final draft of the Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli with
the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace Panel
committed grave abuse of discretion amounting to lack or excess of jurisdiction when
it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on matters of public
concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure
of all its transactions involving public interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT
CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines
would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not recognized
by law;
b) to revise or amend the Constitution and existing laws to conform to the
MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front
for ancestral domain in violation of Republic Act No. 8371 (THE
Josef Elvin Campos
INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) &
Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments
of the Government of the Republic of the Philippines. 24
The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of
the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five
petitions and six petitions-in-intervention against the MOA-AD, as well as the two
comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the GRP and
the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the
Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous
Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA), 26 and
several international law instruments - the ILO Convention No. 169 Concerning Indigenous
and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights
of the Indigenous Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment
emanating from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-
sulh (or territory under peace agreement) that partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world through
a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the
Abode of War). The first referred to those lands where Islamic laws held sway, while the
second denoted those lands where Muslims were persecuted or where Muslim laws were
outlawed or ineffective.27 This way of viewing the world, however, became more complex
through the centuries as the Islamic world became part of the international community of
nations.
As Muslim States entered into treaties with their neighbors, even with distant States and
inter-governmental organizations, the classical division of the world into dar-ul-
Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe
novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-
mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred to countries which,
though under a secular regime, maintained peaceful and cooperative relations with Muslim
States, having been bound to each other by treaty or agreement. Dar-ul-aman (land
of order), on the other hand, referred to countries which, though not bound by treaty with
Muslim States, maintained freedom of religion for Muslims. 28
It thus appears that the "compact rights entrenchment" emanating from the regime of dar-
ul-mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and
the Philippine government - the Philippines being the land of compact and peace agreement
- that partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn
agreement in writing that sets out understandings, obligations, and benefits for both parties
which provides for a framework that elaborates the principles declared in the [MOA-AD]."29
Josef Elvin Campos
The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all Indigenous
peoples of Mindanao to identify themselves and be accepted as ‘Bangsamoros.'" It defines
"Bangsamoro people" as the natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of conquest or
colonization, and their descendants whether mixed or of full blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not
only "Moros" as traditionally understood even by Muslims, 31 but all indigenous peoples of
Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of
indigenous peoples shall be respected. What this freedom of choice consists in has not
been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is
vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation.32 Both parties to the MOA-AD acknowledge that ancestral domain does not
form part of the public domain.33
The Bangsamoro people are acknowledged as having the right to self-governance, which

right is said to be rooted on ancestral territoriality exercised originally under the suzerain
authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were
described as states or "karajaan/kadatuan" resembling a body politic endowed with all the
elements of a nation-state in the modern sense. 34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the
past suzerain authority of the sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the
Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of whom was supreme
over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined
territory and with a system of government having entered into treaties of amity and
commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that
territory, particularly those known as Indians. In Canada, each of these indigenous peoples
is equally entitled to be called "First Nation," hence, all of them are usually described
collectively by the plural "First Nations." 36 To that extent, the MOA-AD, by identifying the
Bangsamoro people as "the First Nation" - suggesting its exclusive entitlement to that
designation - departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to
which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands
of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. 38
More specifically, the core of the BJE is defined as the present geographic area of the
ARMM - thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-
Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities of
Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B. Each of
Josef Elvin Campos
these areas is to be subjected to a plebiscite to be held on different dates, years apart from
each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve
(12) months following the signing of the MOA-AD. 40 Category B areas, also called "Special
Intervention Areas," on the other hand, are to be subjected to a plebiscite twenty-five (25)
years from the signing of a separate agreement - the Comprehensive Compact. 41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its "internal waters," defined as extending fifteen (15) kilometers from the
coastline of the BJE area;42 that the BJE shall also have "territorial waters," which shall
stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines
(RP) south east and south west of mainland Mindanao; and that within
these territorial waters, the BJE and the "Central Government" (used interchangeably with
RP) shall exercise joint jurisdiction, authority and management over all natural
resources.43 Notably, the jurisdiction over the internal waters is not similarly described as
"joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters between

the Central Government and the BJE, in favor of the latter, through production sharing and
economic cooperation agreement.44 The activities which the Parties are allowed to conduct
on the territorial waters are enumerated, among which are the exploration and utilization of
natural resources, regulation of shipping and fishing activities, and the enforcement of
police and safety measures.45 There is no similar provision on the sharing of minerals and
allowed activities with respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and trade
relations with foreign countries and shall have the option to establish trade missions in
those countries. Such relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into environmental cooperation
agreements.46
The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to "take necessary steps to ensure the
BJE's participation in international meetings and events" like those of the ASEAN and the
specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official
missions and delegations for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and revenues involving the
bodies of water adjacent to or between the islands forming part of the ancestral domain. 47
With regard to the right of exploring for, producing, and obtaining all potential sources of
energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control
thereon is to be vested in the BJE "as the party having control within its territorial
jurisdiction." This right carries the proviso that, "in times of national emergency, when public
interest so requires," the Central Government may, for a fixed period and under reasonable
terms as may be agreed upon by both Parties, assume or direct the operation of such
resources.48
The sharing between the Central Government and the BJE of total production pertaining to
natural resources is to be 75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from
any unjust dispossession of their territorial and proprietary rights, customary land tenures,
or their marginalization shall be acknowledged. Whenever restoration is no longer possible,
reparation is to be in such form as mutually determined by the Parties. 50
The BJE may modify or cancel the forest concessions, timber licenses, contracts or

agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including those issued by the present
ARMM.51
D. GOVERNANCE
Josef Elvin Campos
The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor
the implementation of the Comprehensive Compact. This compact is to embody the
"details for the effective enforcement" and "the mechanisms and modalities for the actual
implementation" of the MOA-AD. The MOA-AD explicitly provides that the participation of
the third party shall not in any way affect the status of the relationship between the Central
Government and the BJE.52
The "associative" relationship between the Central Government and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as
"associative," characterized by shared authority and responsibility. And it states that the
structure of governance is to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal
framework" shall take effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present controversy hangs on the
legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive of
civil service, electoral, financial and banking, education, legislation, legal, economic, police
and internal security force, judicial system and correctional institutions, the details of which
shall be discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia
and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the
MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the
signatories as "the representatives of the Parties," meaning the GRP and MILF themselves,
and not merely of the negotiating panels.53 In addition, the signature page of the MOA-AD
states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the
Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to
Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for
Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert
G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim,
Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last
August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps of
the provinces, municipalities, and barangays under Categories A and B earlier mentioned in
the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES

A. RIPENESS
The power of judicial review is limited to actual cases or controversies. 54 Courts decline to
issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic
questions.55 The limitation of the power of judicial review to actual cases and controversies
defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the
courts will not intrude into areas committed to the other branches of government. 56
An actual case or controversy involves a conflict of legal rights, an assertion of opposite

legal claims, susceptible of judicial resolution as distinguished from a hypothetical or
abstract difference or dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence. 57 The Court can
decide the constitutionality of an act or treaty only when a proper case between opposing
parties is submitted for judicial determination. 58
Related to the requirement of an actual case or controversy is the requirement of ripeness.
A question is ripe for adjudication when the act being challenged has had a direct adverse
effect on the individual challenging it. 59 For a case to be considered ripe for adjudication, it
is a prerequisite that something had then been accomplished or performed by either branch
before a court may come into the picture, 60 and the petitioner must allege the existence of
an immediate or threatened injury to itself as a result of the challenged action. 61 He must
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show that he has sustained or is immediately in danger of sustaining some direct injury as a
result of the act complained of.62
The Solicitor General argues that there is no justiciable controversy that is ripe for judicial
review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further

negotiations and legislative enactments as well as constitutional processes aimed at
attaining a final peaceful agreement. Simply put, the MOA-AD remains to be
a proposal that does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly complied with. x x
x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has no
authority to pass upon issues based on hypothetical or feigned constitutional
problems or interests with no concrete bases. Considering
the preliminary character of the MOA-AD, there are no concrete acts that could
possibly violate petitioners' and intervenors' rights since the acts complained of
are mere contemplated steps toward the formulation of a final peace agreement.
Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary and
illusory apart from being unfounded and based on mere conjectures. (Underscoring
supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the Government
stipulates to conduct and deliver, using all possible legal measures, within twelve
(12) months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the
"Annex"). The Annex constitutes an integral part of this framework agreement.
Toward this end, the Parties shall endeavor to complete the negotiations and resolve
all outstanding issues on the Comprehensive Compact within fifteen (15) months
from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual implementation
of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take
such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework with due regard to non-
derogation of prior agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said to have ripened into a judicial controversy even
without any other overt act. Indeed, even a singular violation of the Constitution
and/or the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our constitutional scheme is
a coequal of Congress, is seriously alleged to have infringed the Constitution and the
laws x x x settling the dispute becomes the duty and the responsibility of the courts. 66
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In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held
that the challenge to the constitutionality of the school's policy allowing student-led prayers
and speeches before games was ripe for adjudication, even if no public prayer had yet been
led under the policy, because the policy was being challenged as unconstitutional on its
face.68
That the law or act in question is not yet effective does not negate ripeness. For example,
in New York v. United States,69 decided in 1992, the United States Supreme Court held that
the action by the State of New York challenging the provisions of the Low-Level Radioactive
Waste Policy Act was ripe for adjudication even if the questioned provision was not to take
effect until January 1, 1996, because the parties agreed that New York had to take
immediate action to avoid the provision's consequences. 70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in the
case of certiorari, or is proceeding, in the case of prohibition, without or in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.72 Mandamus is a remedy granted by law 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, or unlawfully excludes another
from the use or enjoyment of a right or office to which such other is entitled. 73 Certiorari,
Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to
review and/or prohibit/nullify, when proper, acts of legislative and executive officials. 74
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No.
3), issued on February 28, 2001. 75 The said executive order requires that "[t]he
government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order." 76
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the
terms of the MOA-AD without consulting the local government units or communities
affected, nor informing them of the proceedings. As will be discussed in greater detail later,
such omission, by itself, constitutes a departure by respondents from their mandate under
E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution.
The MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal framework," implying an
amendment of the Constitution to accommodate the MOA-AD. This stipulation, in
effect, guaranteed to the MILF the amendment of the Constitution. Such act constitutes
another violation of its authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution
and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of
a branch of government is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions."78
Because constitutional cases are often public actions in which the relief sought is likely to
affect other persons, a preliminary question frequently arises as to this interest in the
constitutional question raised.79
When suing as a citizen, the person complaining must allege that he 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
Josef Elvin Campos
subjected to some burdens or penalties by reason of the statute or act complained
of.80 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and
has an interest in the execution of the laws. 81
For a taxpayer, one is allowed to sue where there is an assertion that public funds are
illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law. 82 The Court retains
discretion whether or not to allow a taxpayer's suit. 83
In the case of a legislator or member of Congress, an act of the Executive that injures the
institution of Congress causes a derivative but nonetheless substantial injury that can be
questioned by legislators. A member of the House of Representatives has standing to
maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his
office.84
An organization may be granted standing to assert the rights of its members, 85 but the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of
the duty to preserve the rule of law does not suffice to clothe it with standing. 86
As regards a local government unit (LGU), it can seek relief in order to protect or vindicate
an interest of its own, and of the other LGUs. 87
Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention, 88 such as a legal interest in the matter in
litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi,
given the liberal attitude it has exercised, highlighted in the case of David v. Macapagal-
Arroyo,89 where technicalities of procedure were brushed aside, the constitutional issues
raised being of paramount public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty and weight as precedents. 90 The
Court's forbearing stance on locus standi on issues involving constitutional issues has for its
purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine
whether the other branches of government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given them, has brushed
aside technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.

183591) Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No.
183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-
intervention Province of Sultan Kudarat, City of Isabela and Municipality of
Linamon have locus standi in view of the direct and substantial injury that they, as LGUs,
would suffer as their territories, whether in whole or in part, are to be included in the
intended domain of the BJE. These petitioners allege that they did not vote for their
inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners' legal
standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel

III would have no standing as citizens and taxpayers for their failure to specify that they
would be denied some right or privilege or there would be wastage of public funds. The fact
that they are a former Senator, an incumbent mayor of Makati City, and a resident of
Cagayan de Oro, respectively, is of no consequence. Considering their invocation of the
transcendental importance of the issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers,

assert that government funds would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be
given legal standing. Their allegation that the issues involved in these petitions are of
"undeniable transcendental importance" clothes them with added basis for their personality
to intervene in these petitions.
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With regard to Senator Manuel Roxas, his standing is premised on his being a member of
the Senate and a citizen to enforce compliance by respondents of the public's constitutional
right to be informed of the MOA-AD, as well as on a genuine legal interest in the matter in
litigation, or in the success or failure of either of the parties. He thus possesses the requisite
standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of

Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as
members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer,
resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani,
as taxpayer, they failed to allege any proper legal interest in the present petitions. Just the
same, the Court exercises its discretion to relax the procedural technicality on locus
standi given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development,

an advocacy group for justice and the attainment of peace and prosperity in Muslim
Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government
organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the
case may be, in the resolution of the petitions concerning the MOA-AD, and prays for the
denial of the petitions on the grounds therein stated. Such legal interest suffices to clothe
them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the satisfaction
of all the reliefs prayed for by petitioners and the subsequent pronouncement of the
Executive Secretary that "[n]o matter what the Supreme Court ultimately decides[,] the
government will not sign the MOA."92
In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel. 93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not
being a magical formula that automatically dissuades courts in resolving a case, it will
decide cases, otherwise moot and academic, if it finds that (a) there is a grave violation of
the Constitution;95 (b) the situation is of exceptional character and paramount public interest
is involved;96 (c) the constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public; 97 and (d) the case is capable of repetition yet
evading review.98
Another exclusionary circumstance that may be considered is where there is

a voluntary cessation of the activity complained of by the defendant or doer. Thus, once a
suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically
deprive the tribunal of power to hear and determine the case and does not render the case
moot especially when the plaintiff seeks damages or prays for injunctive relief against the
possible recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust them into the domain
of judicial review. The grounds cited above in David are just as applicable in the present
cases as they were, not only in David, but also in Province of Batangas v.
Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the merits,
supervening events that would ordinarily have rendered the same moot notwithstanding.
Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears
emphasis that the signing of the MOA-AD did not push through due to the Court's issuance
of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of
consensus points," especially given its nomenclature, the need to have it signed or
initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these "consensus points," foremost of which is the
creation of the BJE.
Josef Elvin Campos
In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal framework
for certain provisions of the MOA-AD to take effect. Consequently, the present petitions
are not confined to the terms and provisions of the MOA-AD, but to other on-
going and future negotiations and agreements necessary for its realization . The petitions
have not, therefore, been rendered moot and academic simply by the public disclosure of
the MOA-AD,102 the manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.
Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the country's territory and the wide-ranging political
modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal
enactments including possible Constitutional amendments more than ever provides
impetus for the Court to formulate controlling principles to guide the bench, the bar,
the public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues
which no longer legitimately constitute an actual case or controversy [as this] will do more
harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was
assailed and eventually cancelled was a stand-alone government procurement contract for
a national broadband network involving a one-time contractual relation between two parties-
the government and a private foreign corporation. As the issues therein involved specific
government procurement policies and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional therein, the factual circumstances being peculiar only
to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of
agreements necessary to carry out the Tripoli Agreement 2001 . The MOA-AD which dwells
on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and
the Humanitarian, Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the
Solicitor General, has stated that "no matter what the Supreme Court ultimately decides[,]
the government will not sign the MOA[-AD]," mootness will not set in in light of the terms of
the Tripoli Agreement 2001.
Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry
out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any
form, which could contain similar or significantly drastic provisions. While the Court notes
the word of the Executive Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because that is the only way that long-
lasting peace can be assured," it is minded to render a decision on the merits in the present
petitions to formulate controlling principles to guide the bench, the bar, the public
and, most especially, the government in negotiating with the MILF regarding
Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice
Artemio Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable
of repetition yet evading review" can override mootness, "provided the party raising it in a
proper case has been and/or continue to be prejudiced or damaged as a direct result of
their issuance." They contend that the Court must have jurisdiction over the subject matter
for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises
original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction
and Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching
Josef Elvin Campos
implications and raises questions that need to be resolved. 105 At all events, the Court has
jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases. 106 There is
a reasonable expectation that petitioners, particularly the Provinces of North Cotabato,
Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and
the Municipality of Linamon, will again be subjected to the same problem in the future as
respondents' actions are capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and petitioners
with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have
been furnished, or have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD
was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation and
the right to information when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern,
as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded constitutional
status.
The right of access to public documents, as enshrined in both the 1973 Constitution and the
1987 Constitution, has been recognized as a self-executory constitutional right. 109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public
records is predicated on the right of the people to acquire information on matters of public
concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in matters
of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the fundamental

role of free exchange of information in a democracy. There can be no realistic perception by
the public of the nation's problems, nor a meaningful democratic decision-making if they are
denied access to information of general interest. Information is needed to enable the
members of society to cope with the exigencies of the times. As has been aptly observed:
"Maintaining the flow of such information depends on protection for both its acquisition and
its dissemination since, if either process is interrupted, the flow inevitably ceases." x x x 111
In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation112 so that they may be able to criticize and participate in the affairs of
the government in a responsible, reasonable and effective manner. It is by ensuring an
unfettered and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people. 113
The MOA-AD is a matter of public concern
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That the subject of the information sought in the present cases is a matter of public
concern114 faces no serious challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court found that the regularity of real
estate transactions entered in the Register of Deeds, 116 the need for adequate notice to the
public of the various laws,117 the civil service eligibility of a public employee, 118 the proper
management of GSIS funds allegedly used to grant loans to public officials, 119 the recovery
of the Marcoses' alleged ill-gotten wealth, 120 and the identity of party-list nominees, 121 among
others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present
cases is of public concern, involving as it does the sovereignty and territorial integrity
of the State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and negotiations
leading to the consummation of the contract. In not distinguishing as to the executory nature
or commercial character of agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations leading to

the consummation of the transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can
never exercise the right if no contract is consummated, and if one is consummated, it
may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal,
becomes fait accompli. This negates the State policy of full transparency on matters
of public concern, a situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from participating in the public
discussion of any proposed contract, effectively truncating a basic right enshrined in
the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor
a retreat by the State of its avowed "policy of full disclosure of all its transactions
involving public interest."122 (Emphasis and italics in the original)
Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the
policy of public disclosure under Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.124
The policy of full public disclosure enunciated in above-quoted Section

28 complements the right of access to information on matters of public concern found in the
Bill of Rights. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information even if
nobody demands.125
The policy of public disclosure establishes a concrete 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 to be accountable by following such
policy.126 These provisions are vital to the exercise of the freedom of expression and
essential to hold public officials at all times accountable to the people. 127
Whether Section 28 is self-executory, the records of the deliberations of the Constitutional

Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated
or will not be in force and effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of
course, the implementing law will have to be enacted by Congress, Mr. Presiding
Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the
issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did
I get the Gentleman correctly as having said that this is not a self-executing
provision? It would require a legislation by Congress to implement?
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MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards on national
interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take
effect and Congress may provide for reasonable safeguards on the sole ground
national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of course,
Congress here may no longer pass a law revoking it, or if this is approved, revoking
this principle, which is inconsistent with this policy. 129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the
passing of a statute. As Congress cannot revoke this principle, it is merely directed to
provide for "reasonable safeguards." The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure derive the
same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say that
the broader130 right to information on matters of public concern is already enforceable while
the correlative duty of the State to disclose its transactions involving public interest is not
enforceable until there is an enabling law. Respondents cannot thus point to the absence of
an implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue or process of

communication between the government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the end that the government may
perceive and be responsive to the people's will. 131 Envisioned to be corollary to the twin
rights to information and disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be
able to participate? Will the government provide feedback mechanisms so that
the people can participate and can react where the existing media facilities are
not able to provide full feedback mechanisms to the government? I suppose
this will be part of the government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these
courses take place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about
public officials but also network of private business o[r] community-based
organizations that will be reacting. As a matter of fact, we will put more credence
or credibility on the private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be another OMA in the
making.132 (Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is evident in

the "marching orders" to respondents. The mechanics for the duty to disclose information
and to conduct public consultation regarding the peace agenda and process is manifestly
provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares that there is a
need to further enhance the contribution of civil society to the comprehensive peace
process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it "should
be community-based, reflecting the sentiments, values and principles important to all
Filipinos" and "shall be defined not by the government alone, nor by the different contending
groups only, but by all Filipinos as one community." 134 Included as a component of the
comprehensive peace process is consensus-building and empowerment for peace, which
includes "continuing consultations on both national and local levels to build consensus for a
peace agenda and process, and the mobilization and facilitation of people's participation in
the peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is "more
than sufficient consultation."136
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Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which
is to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace
partners to seek relevant information, comments, recommendations as well as to render
appropriate and timely reports on the progress of the comprehensive peace
process."137 E.O. No. 3 mandates the establishment of the NPF to be "the principal forum for
the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and
concerned sectors of society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society dialogue and
consensus-building on peace agenda and initiatives." 138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda,
as a corollary to the constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority , and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a particular
way or manner. It may, however, require him to comply with the law and discharge the
functions within the authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in
justifying the denial of petitioners' right to be consulted. Respondents' stance manifests the
manner by which they treat the salient provisions of E.O. No. 3 on people's participation.
Such disregard of the express mandate of the President is not much different from
superficial conduct toward token provisos that border on classic lip service. 140 It illustrates a
gross evasion of positive duty and a virtual refusal to perform the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable under
the premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit
provisions on continuing consultation and dialogue on both national and local levels.
The executive order even recognizes the exercise of the public's right even before the
GRP makes its official recommendations or before the government proffers its definite
propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information,
comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view
of their unqualified disclosure of the official copies of the final draft of the MOA-AD. By
unconditionally complying with the Court's August 4, 2008 Resolution, without a prayer for
the document's disclosure in camera, or without a manifestation that it was complying
therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State
policy to "require all national agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and people's organizations, and
other concerned sectors of the community before any project or program is implemented in
their respective jurisdictions" 142 is well-taken. The LGC chapter on intergovernmental
relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by

government authorities unless the consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution. 143 (Italics and
underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted
provision of the LGU apply only to national programs or projects which are to be
implemented in a particular local community. Among the programs and projects covered are
those that are critical to the environment and human ecology including those that may call
for the eviction of a particular group of people residing in the locality where these will be
Josef Elvin Campos
implemented.145 The MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro people,146 which
could pervasively and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose

interests are represented herein by petitioner Lopez and are adversely affected by the
MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of
decision-making in matters which may affect their rights, lives and destinies. 147 The MOA-
AD, an instrument recognizing ancestral domain, failed to justify its non-compliance with the
clear-cut mechanisms ordained in said Act, 148 which entails, among other things, the
observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-AD,
without which all other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without complying with
the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the MOA-
AD is still subject to necessary changes to the legal framework. While paragraph 7 on
Governance suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if the country is to
remain democratic, with sovereignty residing in the people and all government authority
emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all
be accommodated under the present Constitution and laws. Respondents have admitted as
much in the oral arguments before this Court, and the MOA-AD itself recognizes the need to
amend the existing legal framework to render effective at least some of its provisions.
Respondents, nonetheless, counter that the MOA-AD is free of any legal infirmity because
any provisions therein which are inconsistent with the present legal framework will not be
effective until the necessary changes to that framework are made. The validity of this
argument will be considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers conceded
therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those
granted to any local government under present laws, and even go beyond those of the
present ARMM. Before assessing some of the specific powers that would have been vested
in the BJE, however, it would be useful to turn first to a general idea that serves as a
unifying link to the different provisions of the MOA-AD, namely, the international
law concept of association. Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES,

and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the
MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and
the Central Government.
4. The relationship between the Central Government and the Bangsamoro
juridical entity shall be associative characterized by shared authority and
responsibility with a structure of governance based on executive, legislative,
judicial and administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established in a
comprehensive peace compact specifying the relationship between the Central
Government and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined more

precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is
Josef Elvin Campos
a concept of "association" in international law, and the MOA-AD - by its inclusion of
international law instruments in its TOR- placed itself in an international legal context, that
concept of association may be brought to bear in understanding the use of the term
"associative" in the MOA-AD.
Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish
durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international
status as a state. Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States
of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific
Islands,151 are associated states of the U.S. pursuant to a Compact of Free Association. The
currency in these countries is the U.S. dollar, indicating their very close ties with the U.S.,
yet they issue their own travel documents, which is a mark of their statehood. Their
international legal status as states was confirmed by the UN Security Council and by their
admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM generally
have the capacity to conduct foreign affairs in their own name and right, such capacity
extending to matters such as the law of the sea, marine resources, trade, banking, postal,
civil aviation, and cultural relations. The U.S. government, when conducting its foreign
affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on
matters which it (U.S. government) regards as relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option of establishing and using military
areas and facilities within these associated states and has the right to bar the military
personnel of any third country from having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national constitution,
and each party may terminate the association consistent with the right of independence. It
has been said that, with the admission of the U.S.-associated states to the UN in 1990, the
UN recognized that the American model of free association is actually based on an
underlying status of independence.152
In international practice, the "associated state" arrangement has usually been used as
a transitional device of former colonies on their way to full independence . Examples of
states that have passed through the status of associated states as a transitional phase are
Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have
since become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with the international
legal concept of association, specifically the following: the BJE's capacity to enter into
economic and trade relations with foreign countries, the commitment of the Central
Government to ensure the BJE's participation in meetings and events in the ASEAN and the
specialized UN agencies, and the continuing responsibility of the Central Government over
external defense. Moreover, the BJE's right to participate in Philippine official missions
bearing on negotiation of border agreements, environmental protection, and sharing of
revenues pertaining to the bodies of water adjacent to or between the islands forming part
of the ancestral domain, resembles the right of the governments of FSM and the Marshall
Islands to be consulted by the U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest
in the BJE the status of an associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the present Constitution
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No province, city, or municipality, not even the ARMM, is recognized under our laws as
having an "associative" relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to prepare any
part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already
requires for its validity the amendment of constitutional provisions, specifically the following
provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There shall
be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and
in the Cordilleras consisting of provinces, cities, municipalities, and geographical
areas sharing common and distinctive historical and cultural heritage, economic and
social structures, and other relevant characteristics within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.
The BJE is a far more powerful entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE is a
state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention,154 namely, a permanent population, a defined territory, a government, and
a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it - which has betrayed itself by its use of the
concept of association - runs counter to the national sovereignty and territorial
integrity of the Republic.
The defining concept underlying the relationship between the national government
and the BJE being itself contrary to the present Constitution, it is not surprising that
many of the specific provisions of the MOA-AD on the formation and powers of the
BJE are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous
region shall be effective when approved by a majority of the votes cast by the constituent
units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the
autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term "autonomous region" in the constitutional provision
just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on
TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in
addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during
the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
automatically part of the BJE without need of another plebiscite, in contrast to the areas
under Categories A and B mentioned earlier in the overview. That the present components
of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001,
however, does not render another plebiscite unnecessary under the Constitution, precisely
because what these areas voted for then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not comply with Article X, Section 20 of the
Constitution since that provision defines the powers of autonomous regions as follows:
Josef Elvin Campos
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-
AD would require an amendment that would expand the above-quoted provision. The mere
passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision
would not suffice, since any new law that might vest in the BJE the powers found in the
MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for
instance, to merely pass legislation vesting the BJE with treaty-making power in order to
accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to
enter into any economic cooperation and trade relations with foreign countries: provided,
however, that such relationships and understandings do not include aggression against the
Government of the Republic of the Philippines x x x." Under our constitutional system, it is
only the President who has that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign relations. In the
realm of treaty-making, the President has the sole authority to negotiate with
other states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected. That constitutional provision states: "The
State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development." (Underscoring
supplied) An associative arrangement does not uphold national unity . While there may be a
semblance of unity because of the associative ties between the BJE and the national
government, the act of placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for independence, is certainly not
conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with
prevailing statutory law, among which are R.A. No. 9054 156 or the Organic Act of the
ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and
Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as "Bangsamoros". The Bangsamoro
people refers to those who are natives or original inhabitants of Mindanao
and its adjacent islands including Palawan and the Sulu archipelago at the time
of conquest or colonization of its descendants whether mixed or of full blood.
Spouses and their descendants are classified as Bangsamoro. The freedom of
choice of the Indigenous people shall be respected. (Emphasis and underscoring
supplied)
2.
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This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section
3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro
and other indigenous peoples living in Mindanao, clearly distinguishes between
Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers
to Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic
conditions distinguish them from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who
have retained some or all of their own social, economic, cultural, and political
institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-AD's manner of delineating the ancestral
domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1
of Territory, the Parties simply agree that, subject to the delimitations in the agreed
Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land mass as well
as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated
in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of ancestral
domains shall be done in accordance with the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific perimeter may be
initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition
for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries
including census of all community members therein, shall be immediately undertaken
by the Ancestral Domains Office upon filing of the application by the ICCs/IPs
concerned. Delineation will be done in coordination with the community concerned
and shall at all times include genuine involvement and participation by the members
of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of
elders or community under oath, and other documents directly or indirectly attesting
to the possession or occupation of the area since time immemorial by such ICCs/IPs
in the concept of owners which shall be any one (1) of the following authentic
documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old improvements,
burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and
hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as
mountains, rivers, creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the
community.
e) Preparation of Maps. - On the basis of such investigation and the findings of fact
based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter
map, complete with technical descriptions, and a description of the natural features
and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the preliminary
census and a report of investigation, shall be prepared by the Ancestral Domains
Office of the NCIP;
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g) Notice and Publication. - A copy of each document, including a translation in the
native language of the ICCs/IPs concerned shall be posted in a prominent place
therein for at least fifteen (15) days. A copy of the document shall also be posted at
the local, provincial and regional offices of the NCIP, and shall be published in a
newspaper of general circulation once a week for two (2) consecutive weeks to allow
other claimants to file opposition thereto within fifteen (15) days from date of such
publication: Provided, That in areas where no such newspaper exists, broadcasting
in a radio station will be a valid substitute: Provided, further, That mere posting shall
be deemed sufficient if both newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains Office shall prepare a report to the NCIP
endorsing a favorable action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral Domains Office shall
require the submission of additional evidence: Provided, That the Ancestral Domains
Office shall reject any claim that is deemed patently false or fraudulent after
inspection and verification: Provided, further, That in case of rejection, the Ancestral
Domains Office shall give the applicant due notice, copy furnished all concerned,
containing the grounds for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are conflicting claims among
ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains
Office shall cause the contending parties to meet and assist them in coming up with
a preliminary resolution of the conflict, without prejudice to its full adjudication
according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the present legal
system, a discussion of not only the Constitution and domestic statutes, but also of
international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the
generally accepted principles of international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held
that the Universal Declaration of Human Rights is part of the law of the land on account of
which it ordered the release on bail of a detained alien of Russian descent whose
deportation order had not been executed even after two years. Similarly, the Court
in Agustin v. Edu159 applied the aforesaid constitutional provision to the 1968 Vienna
Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples,"

understood not merely as the entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec had a right to unilaterally secede
from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF
QUEBEC160 had occasion to acknowledge that "the right of a people to self-determination is
now so widely recognized in international conventions that the principle has acquired a
status beyond ‘convention' and is considered a general principle of international law."
Among the conventions referred to are the International Covenant on Civil and Political
Rights161 and the International Covenant on Economic, Social and Cultural Rights 162 which
state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-
determination, "freely determine their political status and freely pursue their economic,
social, and cultural development."
The people's right to self-determination should not, however, be understood as extending to

a unilateral right of secession. A distinction should be made between the right of internal
and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again
instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-
determination - a people's pursuit of its political, economic, social and cultural
development within the framework of an existing state. A right to external self-
determination (which in this case potentially takes the form of the assertion of
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a right to unilateral secession) arises in only the most extreme of cases and,
even then, under carefully defined circumstances. x x x
External self-determination can be defined as in the following statement from
the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free association
or integration with an independent State or the emergence into any other
political status freely determined by a people constitute modes of implementing
the right of self-determination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved within a
framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to self-
determination also contain parallel statements supportive of the conclusion that the
exercise of such a right must be sufficiently limited to prevent threats to an existing
state's territorial integrity or the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to external
self-determination can arise, namely, where a people is under colonial rule, is subject to
foreign domination or exploitation outside a colonial context, and - less definitely but
asserted by a number of commentators - is blocked from the meaningful exercise of its right
to internal self-determination. The Court ultimately held that the population of Quebec had
no right to secession, as the same is not under colonial rule or foreign domination, nor is it
being deprived of the freedom to make political choices and pursue economic, social and
cultural development, citing that Quebec is equitably represented in legislative, executive
and judicial institutions within Canada, even occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT OF
THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE
AALAND ISLANDS QUESTION.163 There, Sweden presented to the Council of the League
of Nations the question of whether the inhabitants of the Aaland Islands should be
authorized to determine by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the
question, appointed an International Committee composed of three jurists to submit an
opinion on the preliminary issue of whether the dispute should, based on international law,
be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as
follows:
x x x [I]n the absence of express provisions in international treaties, the right of

disposing of national territory is essentially an attribute of the sovereignty of
every State. Positive International Law does not recognize the right of national
groups, as such, to separate themselves from the State of which they form
part by the simple expression of a wish, any more than it recognizes the right of
other States to claim such a separation. Generally speaking, the grant or refusal
of the right to a portion of its population of determining its own political fate by
plebiscite or by some other method, is, exclusively, an attribute of the
sovereignty of every State which is definitively constituted . A dispute between
two States concerning such a question, under normal conditions therefore, bears
upon a question which International Law leaves entirely to the domestic jurisdiction
of one of the States concerned. Any other solution would amount to an infringement
of sovereign rights of a State and would involve the risk of creating difficulties and a
lack of stability which would not only be contrary to the very idea embodied in term
"State," but would also endanger the interests of the international community. If this
right is not possessed by a large or small section of a nation, neither can it be held
by the State to which the national group wishes to be attached, nor by any other
State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a
question which is left by international law to the domestic jurisdiction of Finland, thereby
applying the exception rather than the rule elucidated above. Its ground for departing from
the general rule, however, was a very narrow one, namely, the Aaland Islands agitation
originated at a time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so abnormal that, for a
considerable time, the conditions required for the formation of a sovereign State did not
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exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national
government was disputed by a large section of the people, and it had, in fact, been chased
from the capital and forcibly prevented from carrying out its duties. The armed camps and
the police were divided into two opposing forces. In light of these circumstances, Finland
was not, during the relevant time period, a "definitively constituted" sovereign state. The
Committee, therefore, found that Finland did not possess the right to withhold from a portion
of its population the option to separate itself - a right which sovereign nations generally have
with respect to their own populations.
Turning now to the more specific category of indigenous peoples, this term has been used,
in scholarship as well as international, regional, and state practices, to refer to groups with
distinct cultures, histories, and connections to land (spiritual and otherwise) that have been
forcibly incorporated into a larger governing society. These groups are regarded as
"indigenous" since they are the living descendants of pre-invasion inhabitants of lands now
dominated by others. Otherwise stated, indigenous peoples, nations, or communities are
culturally distinctive groups that find themselves engulfed by settler societies born of the
forces of empire and conquest.164 Examples of groups who have been regarded as
indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within states do not
have a general right to independence or secession from those states under international
law,165 but they do have rights amounting to what was discussed above as the right
to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted the
United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP)
through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines
being included among those in favor, and the four voting against being Australia, Canada,
New Zealand, and the U.S. The Declaration clearly recognized the right of indigenous
peoples to self-determination, encompassing the right to autonomy or self-
government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right
to autonomy or self-government in matters relating to their internal and local
affairs, as well as ways and means for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political,
legal, economic, social and cultural institutions, while retaining their right to
participate fully, if they so choose, in the political, economic, social and cultural life of
the State.
Self-government, as used in international legal discourse pertaining to indigenous peoples,

has been understood as equivalent to "internal self-determination." 166 The extent of self-
determination provided for in the UN DRIP is more particularly defined in its subsequent
articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress
for:
(a) Any action which has the aim or effect of depriving them of their integrity
as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their
lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of
violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
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(e) Any form of propaganda designed to promote or incite racial or ethnic
discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of
their economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and social
security.
2. States shall take effective measures and, where appropriate, special measures to
ensure continuing improvement of their economic and social conditions. Particular
attention shall be paid to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or
other traditional occupation or use, as well as those which they have otherwise
acquired.
3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous
peoples, unless justified by a relevant public interest or otherwise freely agreed with
or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples
concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their free
and informed consent prior to the approval of any project affecting their lands or
territories and other resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and enforcement
of treaties, agreements and other constructive arrangements concluded with States
or their successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the
rights of indigenous peoples contained in treaties, agreements and other
constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be
regarded as embodying customary international law - a question which the Court need not
definitively resolve here - the obligations enumerated therein do not strictly require the
Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the
particular rights and powers provided for in the MOA-AD. Even the more specific provisions
of the UN DRIP are general in scope, allowing for flexibility in its application by the different
States.
There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Article 8
presupposes that it is the State which will provide protection for indigenous peoples against
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acts like the forced dispossession of their lands - a function that is normally performed by
police officers. If the protection of a right so essential to indigenous people's identity is
acknowledged to be the responsibility of the State, then surely the protection of rights less
significant to them as such peoples would also be the duty of States. Nor is there in the UN
DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and
atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples
to the lands, territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does
not obligate States to grant indigenous peoples the near-independent status of an
associated state. All the rights recognized in that document are qualified in Article 46 as
follows:
1. Nothing in this Declaration may be interpreted as implying for any State,
people, group or person any right to engage in any activity or to perform any act
contrary to the Charter of the United Nations or construed as authorizing or
encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II,
Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as
to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents
proffer, however, that the signing of the MOA-AD alone would not have entailed any
violation of law or grave abuse of discretion on their part, precisely because it stipulates that
the provisions thereof inconsistent with the laws shall not take effect until these laws are
amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier,
but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to
mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework with due regard to non derogation of
prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from
coming into force until the necessary changes to the legal framework are effected. While
the word "Constitution" is not mentioned in the provision now under consideration
or anywhere else in the MOA-AD, the term "legal framework" is certainly broad
enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of

incorporating in the MOA-AD the provisions thereof regarding the associative relationship
between the BJE and the Central Government, have already violated the Memorandum of
Instructions From The President dated March 1, 2001, which states that the "negotiations
shall be conducted in accordance with x x x the principles of the sovereignty and territorial
integrity of the Republic of the Philippines." (Emphasis supplied) Establishing an
associative relationship between the BJE and the Central Government is, for the reasons
already discussed, a preparation for independence, or worse, an implicit acknowledgment
of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective
because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on
E.O. No. 3, Section 5(c), which states that there shall be established Government Peace
Negotiating Panels for negotiations with different rebel groups to be "appointed by the
President as her official emissaries to conduct negotiations, dialogues, and face-to-face
discussions with rebel groups." These negotiating panels are to report to the President,
through the PAPP on the conduct and progress of the negotiations.
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It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro
Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to
those options available under the laws as they presently stand. One of the components of a
comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths to
Peace," is the pursuit of social, economic, and political reforms which may require new
legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive
peace process comprise the processes known as the "Paths to Peace". These
component processes are interrelated and not mutually exclusive, and must
therefore be pursued simultaneously in a coordinated and integrated fashion. They
shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This
component involves the vigorous implementation of various policies, reforms,
programs and projects aimed at addressing the root causes of internal armed
conflicts and social unrest. This may require administrative action, new
legislation or even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to

address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included various social, economic,
and political reforms which cannot, however, all be accommodated within the present legal
framework, and which thus would require new legislation and constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here, because
it must be asked whether the President herself may exercise the power delegated to
the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the
President, in the course of peace negotiations, agree to pursue reforms that would require
new legislation and constitutional amendments, or should the reforms be restricted only to
those solutions which the present laws allow? The answer to this question requires a
discussion of the extent of the President's power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not
explicitly mentioned in the Constitution does not mean that she has no such authority.
In Sanlakas v. Executive Secretary,168 in issue was the authority of the President to declare
a state of rebellion - an authority which is not expressly provided for in the Constitution. The
Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power
to forbid the return of her exiled predecessor. The rationale for the majority's ruling
rested on the President's
. . . unstated residual powers which are implied from the grant of
executive power and which are necessary for her to comply with her
duties under the Constitution. The powers of the President are not
limited to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of
executive power.
Thus, the President's authority to declare a state of rebellion springs in the

main from her powers as chief executive and, at the same time, draws strength
from her Commander-in-Chief powers. x x x (Emphasis and underscoring
supplied)
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Similarly, the President's power to conduct peace negotiations is implicitly included in her
powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has
the general responsibility to promote public peace, and as Commander-in-Chief, she has
the more specific duty to prevent and suppress rebellion and lawless violence. 169
As the experience of nations which have similarly gone through internal armed conflict will
show, however, peace is rarely attained by simply pursuing a military solution. Oftentimes,
changes as far-reaching as a fundamental reconfiguration of the nation's constitutional
structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must
form the core of any post-conflict peace-building mission. As we have observed in
Liberia and Haiti over the last ten years, conflict cessation without modification of the
political environment, even where state-building is undertaken through technical
electoral assistance and institution- or capacity-building, is unlikely to succeed. On
average, more than 50 percent of states emerging from conflict return to conflict.
Moreover, a substantial proportion of transitions have resulted in weak or limited
democracies.
The design of a constitution and its constitution-making process can play an

important role in the political and governance transition. Constitution-making after
conflict is an opportunity to create a common vision of the future of a state and a
road map on how to get there. The constitution can be partly a peace agreement and
partly a framework setting up the rules by which the new democracy will operate. 170
In the same vein, Professor Christine Bell, in her article on the nature and legal status of
peace agreements, observed that the typical way that peace agreements establish or
confirm mechanisms for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and legal and human rights
institutions.171
In the Philippine experience, the link between peace agreements and constitution-making
has been recognized by no less than the framers of the Constitution. Behind the provisions
of the Constitution on autonomous regions 172 is the framers' intention to implement a
particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and
the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and
then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions,
I will reserve my right to ask them if they are not covered by the other speakers. I
have only two questions.
I heard one of the Commissioners say that local autonomy already exists in
the Muslim region; it is working very well; it has, in fact, diminished a great deal of
the problems. So, my question is: since that already exists, why do we have to go
into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the
provisions of the Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question that this is merely
a partial response to the Tripoli Agreement itself and to the fuller standard of
regional autonomy contemplated in that agreement, and now by state
policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them have,
to the credit of their drafters, been partly successful. Nonetheless, the Filipino people are
still faced with the reality of an on-going conflict between the Government and the MILF. If
the President is to be expected to find means for bringing this conflict to an end and to
achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the
course of peace negotiations, solutions that may require changes to the Constitution for
their implementation. Being uniquely vested with the power to conduct peace negotiations
with rebel groups, the President is in a singular position to know the precise nature of their
grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she considers
viable, but she may not be prevented from submitting them as recommendations to
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Congress, which could then, if it is minded, act upon them pursuant to the legal procedures
for constitutional amendment and revision. In particular, Congress would have the option,
pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended
amendments or revision to the people, call a constitutional convention, or submit to the
electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers may be
exercised only by Congress, a Constitutional Convention, or the people through initiative
and referendum - she may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of
directly submitting proposals for constitutional amendments to a referendum, bypassing the
interim National Assembly which was the body vested by the 1973 Constitution with the
power to propose such amendments. President Marcos, it will be recalled, never convened
the interim National Assembly. The majority upheld the President's act, holding that "the
urges of absolute necessity" compelled the President as the agent of the people to act as
he did, there being no interim National Assembly to propose constitutional amendments.
Against this ruling, Justices Teehankee and Muñoz Palma vigorously dissented. The
Court's concern at present, however, is not with regard to the point on which it was then
divided in that controversial case, but on that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the
President may directly submit proposed constitutional amendments to a referendum, implicit
in his opinion is a recognition that he would have upheld the President's action along with
the majority had the President convened the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of
the exercise of such powers, and the constituent power has not been granted to but
has been withheld from the President or Prime Minister, it follows that the President's
questioned decrees proposing and submitting constitutional amendments directly to
the people (without the intervention of the interim National Assembly in whom
the power is expressly vested) are devoid of constitutional and legal
basis."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President - in the
course of conducting peace negotiations - may validly consider implementing even those
policies that require changes to the Constitution, but she may not unilaterally implement
them without the intervention of Congress, or act in any way as if the assent of that
body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly propose
amendments through initiative and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to be voted on in a plebiscite
similar to what President Marcos did in Sanidad, but for their independent consideration of
whether these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the President's
suggestions to the people, for any further involvement in the process of initiative by the
Chief Executive may vitiate its character as a genuine "people's initiative." The only initiative
recognized by the Constitution is that which truly proceeds from the people. As the Court
stated in Lambino v. COMELEC:177
"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."
It will be observed that the President has authority, as stated in her oath of office, 178 only
to preserve and defend the Constitution. Such presidential power does not, however,
Josef Elvin Campos
extend to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes and
submits to the proper procedure for constitutional amendments and revision, her mere
recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to

propose constitutional amendments, since her authority to propose new legislation is not
in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose
new legislation. One of the more prominent instances the practice is usually done is in the
yearly State of the Nation Address of the President to Congress. Moreover, the annual
general appropriations bill has always been based on the budget prepared by the President,
which - for all intents and purposes - is a proposal for new legislation coming from the
President.179
The "suspensive clause" in the MOA-AD viewed in light of the above-discussed

standards
Given the limited nature of the President's authority to propose constitutional amendments,
she cannot guarantee to any third party that the required amendments will eventually be
put in place, nor even be submitted to a plebiscite. The most she could do is submit these
proposals as recommendations either to Congress or the people, in whom constituent
powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof
which cannot be reconciled with the present Constitution and laws "shall come into force
upon signing of a Comprehensive Compact and upon effecting the necessary changes to
the legal framework." This stipulation does not bear the marks of a suspensive condition -
defined in civil law as a future and uncertain event - but of a term. It is not a question
of whether the necessary changes to the legal framework will be effected, but when. That
there is no uncertainty being contemplated is plain from what follows, for the paragraph
goes on to state that the contemplated changes shall be "with due regard to non derogation
of prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to
the legal framework contemplated in the MOA-AD - which changes would include
constitutional amendments, as discussed earlier. It bears noting that, By the time these
changes are put in place, the MOA-AD itself would be counted among the "prior
agreements" from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these "consensus points" and, notably, the deadline for effecting
the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the

President's authority to propose constitutional amendments, it being a virtual
guarantee that the Constitution and the laws of the Republic of the Philippines will certainly
be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must
be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in
two phases. Phase I covered a three-year transitional period involving the putting up of new
administrative structures through Executive Order, such as the Special Zone of Peace and
Development (SZOPAD) and the Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then the Organic
Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the

expanded autonomous region envisioned by the parties. To that extent, they are similar to
Josef Elvin Campos
the provisions of the MOA-AD. There is, however, a crucial difference between the two
agreements. While the MOA-AD virtually guarantees that the "necessary changes to
the legal framework" will be put in place, the GRP-MNLF final peace agreement states
thus: "Accordingly, these provisions [on Phase II] shall be recommended by the GRP to
Congress for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be considered either as a binding agreement
under international law, or a unilateral declaration of the Philippine government to the
international community that it would grant to the Bangsamoro people all the concessions
therein stated. Neither ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign
dignitaries as signatories. In addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that
the MOA-AD would have had the status of a binding international agreement had it been
signed. An examination of the prevailing principles in international law, however, leads to
the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty 180 (the Lomé Accord
case) of the Special Court of Sierra Leone is enlightening. The Lomé Accord was a peace
agreement signed on July 7, 1999 between the Government of Sierra Leone and the
Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government
had been in armed conflict for around eight years at the time of signing. There were non-
contracting signatories to the agreement, among which were the Government of the
Togolese Republic, the Economic Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General and
the Sierra Leone Government, another agreement was entered into by the UN and that
Government whereby the Special Court of Sierra Leone was established. The sole purpose
of the Special Court, an international court, was to try persons who bore the greatest
responsibility for serious violations of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for the full pardon of the
members of the RUF with respect to anything done by them in pursuit of their objectives as
members of that organization since the conflict began.
In the Lomé Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing,
among other things, the participation of foreign dignitaries and international organizations in
the finalization of that agreement. The Special Court, however, rejected this argument,
ruling that the Lome Accord is not a treaty and that it can only create binding obligations
and rights between the parties in municipal law, not in international law. Hence, the Special
Court held, it is ineffective in depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed conflict it

is easy to assume and to argue with some degree of plausibility, as Defence
counsel for the defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document formalizing the settlement
is signed by foreign heads of state or their representatives and representatives
of international organizations, means the agreement of the parties is
internationalized so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose auspices
the settlement took place but who are not at all parties to the conflict, are not
contracting parties and who do not claim any obligation from the contracting parties
or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State
and the RUF which has no status of statehood and is to all intents and
purposes a faction within the state. The non-contracting signatories of the
Josef Elvin Campos
Lomé Agreement were moral guarantors of the principle that, in the terms of
Article XXXIV of the Agreement, "this peace agreement is implemented with
integrity and in good faith by both parties". The moral guarantors assumed no
legal obligation. It is recalled that the UN by its representative appended,
presumably for avoidance of doubt, an understanding of the extent of the agreement
to be implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create rights and
obligations regulated by international law so that a breach of its terms will be a
breach determined under international law which will also provide principle means of
enforcement. The Lomé Agreement created neither rights nor obligations
capable of being regulated by international law. An agreement such as the
Lomé Agreement which brings to an end an internal armed conflict no doubt
creates a factual situation of restoration of peace that the international
community acting through the Security Council may take note of. That,
however, will not convert it to an international agreement which creates an
obligation enforceable in international, as distinguished from municipal, law. A
breach of the terms of such a peace agreement resulting in resumption of internal
armed conflict or creating a threat to peace in the determination of the Security
Council may indicate a reversal of the factual situation of peace to be visited with
possible legal consequences arising from the new situation of conflict created. Such
consequences such as action by the Security Council pursuant to Chapter VII arise
from the situation and not from the agreement, nor from the obligation imposed by it.
Such action cannot be regarded as a remedy for the breach. A peace agreement
which settles an internal armed conflict cannot be ascribed the same status as
one which settles an international armed conflict which, essentially, must be
between two or more warring States. The Lomé Agreement cannot be
characterised as an international instrument. x x x" (Emphasis, italics and
Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest in it
a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply with
all the stipulations stated therein, with the result that it would have to amend its Constitution
accordingly regardless of the true will of the people. Cited as authority for this view
is Australia v. France,181 also known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's
nuclear tests in the South Pacific. France refused to appear in the case, but public
statements from its President, and similar statements from other French officials including
its Minister of Defence, that its 1974 series of atmospheric tests would be its last,
persuaded the ICJ to dismiss the case. 182 Those statements, the ICJ held, amounted to a
legal undertaking addressed to the international community, which required no acceptance
from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to be bound to
the international community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating legal obligations.
Declarations of this kind may be, and often are, very specific. When it is the
intention of the State making the declaration that it should become bound
according to its terms, that intention confers on the declaration the character
of a legal undertaking, the State being thenceforth legally required to follow a
course of conduct consistent with the declaration. An undertaking of this kind, if
given publicly, and with an intent to be bound, even though not made within the
context of international negotiations, is binding. In these circumstances, nothing in
the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor
even any reply or reaction from other States, is required for the declaration to take
effect, since such a requirement would be inconsistent with the strictly unilateral
nature of the juridical act by which the pronouncement by the State was made.
Josef Elvin Campos
44. Of course, not all unilateral acts imply obligation; but a State may choose to
take up a certain position in relation to a particular matter with the intention of
being bound-the intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of action is to be limited,
a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be the last,
the French Government conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests. It was bound to
assume that other States might take note of these statements and rely on their
being effective. The validity of these statements and their legal consequences
must be considered within the general framework of the security of
international intercourse, and the confidence and trust which are so essential in
the relations among States. It is from the actual substance of these statements,
and from the circumstances attending their making, that the legal implications
of the unilateral act must be deduced. The objects of these statements are
clear and they were addressed to the international community as a whole, and
the Court holds that they constitute an undertaking possessing legal
effect. The Court considers *270 that the President of the Republic, in deciding upon
the effective cessation of atmospheric tests, gave an undertaking to the international
community to which his words were addressed. x x x (Emphasis and underscoring
supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the following
conditions are present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its statements, and that not
to give legal effect to those statements would be detrimental to the security of international
intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case
decided by the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning the
Frontier Dispute. The public declaration subject of that case was a statement made by the
President of Mali, in an interview by a foreign press agency, that Mali would abide by the
decision to be issued by a commission of the Organization of African Unity on a frontier
dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was
not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case
rested on the peculiar circumstances surrounding the French declaration subject thereof, to
wit:
40. In order to assess the intentions of the author of a unilateral act, account must be
taken of all the factual circumstances in which the act occurred. For example, in the
Nuclear Tests cases, the Court took the view that since the applicant States
were not the only ones concerned at the possible continuance of atmospheric
testing by the French Government, that Government's unilateral declarations
had ‘conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. 474,
para. 53). In the particular circumstances of those cases, the French
Government could not express an intention to be bound otherwise than by
unilateral declarations. It is difficult to see how it could have accepted the
terms of a negotiated solution with each of the applicants without thereby
jeopardizing its contention that its conduct was lawful. The circumstances of
the present case are radically different. Here, there was nothing to hinder the
Parties from manifesting an intention to accept the binding character of the
conclusions of the Organization of African Unity Mediation Commission by the
normal method: a formal agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the Parties, the Chamber finds that
there are no grounds to interpret the declaration made by Mali's head of State on 11
April 1975 as a unilateral act with legal implications in regard to the present case.
(Emphasis and underscoring supplied)
Josef Elvin Campos
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a
unilateral declaration on the part of the Philippine State to the international community. The
Philippine panel did not draft the same with the clear intention of being bound thereby to the
international community as a whole or to any State, but only to the MILF. While there were
States and international organizations involved, one way or another, in the negotiation and
projected signing of the MOA-AD, they participated merely as witnesses or, in the case of
Malaysia, as facilitator. As held in the Lomé Accord case, the mere fact that in addition to
the parties to the conflict, the peace settlement is signed by representatives of states and
international organizations does not mean that the agreement is internationalized so as to
create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal
effect to such commitments would not be detrimental to the security of international
intercourse - to the trust and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the Mali President's statement was not held
to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to
hinder the Philippine panel, had it really been its intention to be bound to other States, to
manifest that intention by formal agreement. Here, that formal agreement would have come
about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the
international community, not just the MILF, and by an equally clear indication that the
signatures of the participating states-representatives would constitute an acceptance of that
commitment. Entering into such a formal agreement would not have resulted in a loss of
face for the Philippine government before the international community, which was one of the
difficulties that prevented the French Government from entering into a formal agreement
with other countries. That the Philippine panel did not enter into such a formal agreement
suggests that it had no intention to be bound to the international community. On that
ground, the MOA-AD may not be considered a unilateral declaration under international
law.
The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of guaranteeing amendments to
the legal framework is, by itself, sufficient to constitute grave abuse of discretion.
The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem,
the creation of a state within a state, but in their brazen willingness to guarantee that
Congress and the sovereign Filipino people would give their imprimatur to their
solution. Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the people
themselves through the process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue influence or interference with
that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its own
territory to the Moros for the sake of peace, for it can change the Constitution in any it
wants, so long as the change is not inconsistent with what, in international law, is known
as Jus Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents from their
mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act
of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution
by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted
in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds
that the present petitions provide an exception to the "moot and academic" principle in view
Josef Elvin Campos
of (a) the grave violation of the Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to formulate controlling principles to
guide the bench, the bar, and the public; and (d) the fact that the case is capable of
repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-
MILF Tripoli Agreement on Peace signed by the government and the MILF back in June
2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could
contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in view
of the respondents' action in providing the Court and the petitioners with the official copy of
the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III of the
Constitution is in splendid symmetry with the state policy of full public disclosure of all its
transactions involving public interest under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if nobody demands. The
complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory nature,
subject only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public
interest in the highest order. In declaring that the right to information contemplates steps
and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process of

communication between the government and the people. Corollary to these twin rights is
the design for feedback mechanisms. The right to public consultation was envisioned to be
a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the
exercise of the people's right to be consulted on relevant matters relating to the peace
agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national
and local levels and for a principal forum for consensus-building. In fact, it is the duty of the
Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant
information, comments, advice, and recommendations from peace partners and concerned
sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national
offices to conduct consultations before any project or program critical to the environment
and human ecology including those that may call for the eviction of a particular group of
people residing in such locality, is implemented therein. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for
clear-cut procedure for the recognition and delineation of ancestral domain, which entails,
among other things, the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant
the Executive Department or any government agency the power to delineate and recognize
an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event, respondents effectively waived
such defense after it unconditionally disclosed the official copies of the final draft of the
MOA-AD, for judicial compliance and public scrutiny.
Josef Elvin Campos
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion
when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3,
Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-
AD was designed and crafted runs contrary to and in excess of the legal authority, and
amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It
illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only
its specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are unconstitutional, for the
concept presupposes that the associated entity is a state and implies that the same is on its
way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with
the present legal framework will not be effective until that framework is amended, the same
does not cure its defect. The inclusion of provisions in the MOA-AD establishing an
associative relationship between the BJE and the Central Government is, itself, a violation
of the Memorandum of Instructions From The President dated March 1, 2001, addressed to
the government peace panel. Moreover, as the clause is worded, it virtually guarantees that
the necessary amendments to the Constitution and the laws will eventually be put in place.
Neither the GRP Peace Panel nor the President herself is authorized to make such a
guarantee. Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the people
themselves through the process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue influence or interference with
that process.
While the MOA-AD would not amount to an international agreement or unilateral declaration
binding on the Philippines under international law, respondents' act of guaranteeing
amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally
defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening

petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 is declared contrary to law and the Constitution.
SO ORDERED.
5. Creation of Local Government Units
Cases: Sema v. Comelec (G.R. No. 177597, 16 July 2008)

G.R. No. 177597 July 16, 2008
BAI SANDRA S. A. SEMA, Petitioner,
vs.
COMMISSION ON ELECTIONS and DIDAGEN P. DILANGALEN, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178628
PERFECTO F. MARQUEZ, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
CARPIO, J.:
The Case
These consolidated petitions 1 seek to annul Resolution No. 7902, dated 10 May 2007, of
the Commission on Elections (COMELEC) treating Cotabato City as part of the legislative
district of the Province of Shariff Kabunsuan. 2
Josef Elvin Campos
The Facts
The Ordinance appended to the 1987 Constitution apportioned two legislative districts for
the Province of Maguindanao. The first legislative district consists of Cotabato City and
eight municipalities.3 Maguindanao forms part of the Autonomous Region in Muslim
Mindanao (ARMM), created under its Organic Act, Republic Act No. 6734 (RA 6734), as
amended by Republic Act No. 9054 (RA 9054). 4 Although under the Ordinance, Cotabato
City forms part of Maguindanao’s first legislative district, it is not part of the ARMM but of
Region XII, having voted against its inclusion in the ARMM in the plebiscite held in
November 1989.
On 28 August 2006, the ARMM’s legislature, the ARMM Regional Assembly, exercising its
power to create provinces under Section 19, Article VI of RA 9054, 5 enacted Muslim
Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff
Kabunsuan composed of the eight municipalities in the first district of Maguindanao. MMA
Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog,
Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated from the Province of
Maguindanao and constituted into a distinct and independent province, which is hereby
created, to be known as the Province of Shariff Kabunsuan.
xxxx
Sec. 5. The corporate existence of this province shall commence upon the appointment by
the Regional Governor or election of the governor and majority of the regular members of
the Sangguniang Panlalawigan.
The incumbent elective provincial officials of the Province of Maguindanao shall continue to
serve their unexpired terms in the province that they will choose or where they are
residents: Provided, that where an elective position in both provinces becomes vacant as a
consequence of the creation of the Province of Shariff Kabunsuan, all incumbent elective
provincial officials shall have preference for appointment to a higher elective vacant position
and for the time being be appointed by the Regional Governor, and shall hold office until
their successors shall have been elected and qualified in the next local elections; Provided,
further, that they shall continue to receive the salaries they are receiving at the time of the
approval of this Act until the new readjustment of salaries in accordance with law. Provided,
furthermore, that there shall be no diminution in the number of the members of the
Sangguniang Panlalawigan of the mother province.
Except as may be provided by national law, the existing legislative district, which includes
Cotabato as a part thereof, shall remain.
Later, three new municipalities6 were carved out of the original nine municipalities
constituting Shariff Kabunsuan, bringing its total number of municipalities to 11. Thus, what
was left of Maguindanao were the municipalities constituting its second legislative district.
Cotabato City, although part of Maguindanao’s first legislative district, is not part of the
Province of Maguindanao.
The voters of Maguindanao ratified Shariff Kabunsuan’s creation in a plebiscite held on 29
October 2006.
On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution No.
3999 requesting the COMELEC to "clarify the status of Cotabato City in view of the
conversion of the First District of Maguindanao into a regular province" under MMA Act 201.
In answer to Cotabato City’s query, the COMELEC issued Resolution No. 07-0407 on 6
March 2007 "maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in
the First Legislative District of Maguindanao." Resolution No. 07-0407, which adopted the
recommendation of the COMELEC’s Law Department under a Memorandum dated 27
February 2007,7 provides in pertinent parts:
Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt the
recommendation of the Law Department that pending the enactment of the appropriate
law by Congress, to maintain the status quo with Cotabato City as part of Shariff
Kabunsuan in the First Legislative District of Maguindanao. (Emphasis supplied)
Josef Elvin Campos
However, in preparation for the 14 May 2007 elections, the COMELEC promulgated on 29
March 2007 Resolution No. 7845 stating that Maguindanao’s first legislative district is
composed only of Cotabato City because of the enactment of MMA Act 201. 8
On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions,
amending Resolution No. 07-0407 by renaming the legislative district in question as "Shariff
Kabunsuan Province with Cotabato City (formerly First District of Maguindanao with
Cotabato City)."91avvphi1
In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for
Representative of "Shariff Kabunsuan with Cotabato City," prayed for the nullification of
COMELEC Resolution No. 7902 and the exclusion from canvassing of the votes cast in
Cotabato City for that office. Sema contended that Shariff Kabunsuan is entitled to one
representative in Congress under Section 5 (3), Article VI of the Constitution 10 and Section 3
of the Ordinance appended to the Constitution. 11 Thus, Sema asserted that the COMELEC
acted without or in excess of its jurisdiction in issuing Resolution No. 7902 which maintained
the status quo in Maguindanao’s first legislative district despite the COMELEC’s earlier
directive in Resolution No. 7845 designating Cotabato City as the lone component of
Maguindanao’s reapportioned first legislative district. 12 Sema further claimed that in issuing
Resolution No. 7902, the COMELEC usurped Congress’ power to create or reapportion
legislative districts.
In its Comment, the COMELEC, through the Office of the Solicitor General (OSG), chose
not to reach the merits of the case and merely contended that (1) Sema wrongly availed of
the writ of certiorari to nullify COMELEC Resolution No. 7902 because the COMELEC
issued the same in the exercise of its administrative, not quasi-judicial, power and (2)
Sema’s prayer for the writ of prohibition in G.R. No. 177597 became moot with the
proclamation of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1 June 2007
as representative of the legislative district of Shariff Kabunsuan Province with Cotabato
City.
In his Comment, respondent Dilangalen countered that Sema is estopped from questioning
COMELEC Resolution No. 7902 because in her certificate of candidacy filed on 29 March
2007, Sema indicated that she was seeking election as representative of "Shariff
Kabunsuan including Cotabato City." Respondent Dilangalen added that COMELEC
Resolution No. 7902 is constitutional because it did not apportion a legislative district for
Shariff Kabunsuan or reapportion the legislative districts in Maguindanao but merely
renamed Maguindanao’s first legislative district. Respondent Dilangalen further claimed that
the COMELEC could not reapportion Maguindanao’s first legislative district to make
Cotabato City its sole component unit as the power to reapportion legislative districts lies
exclusively with Congress, not to mention that Cotabato City does not meet the minimum
population requirement under Section 5 (3), Article VI of the Constitution for the creation of
a legislative district within a city.13
Sema filed a Consolidated Reply controverting the matters raised in respondents’

Comments and reiterating her claim that the COMELEC acted ultra vires in issuing
Resolution No. 7902.
In the Resolution of 4 September 2007, the Court required the parties in G.R. No. 177597 to
comment on the issue of whether a province created by the ARMM Regional Assembly
under Section 19, Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative district for such new
province. The parties submitted their compliance as follows:
(1) Sema answered the issue in the affirmative on the following grounds: (a) the
Court in Felwa v. Salas14 stated that "when a province is created by statute, the
corresponding representative district comes into existence neither by authority of that
statute — which cannot provide otherwise — nor by apportionment, but by operation
of the Constitution, without a reapportionment"; (b) Section 462 of Republic Act No.
7160 (RA 7160) "affirms" the apportionment of a legislative district incident to the
creation of a province; and (c) Section 5 (3), Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution mandate the apportionment
of a legislative district in newly created provinces.
Josef Elvin Campos
(2) The COMELEC, again represented by the OSG, apparently abandoned its earlier
stance on the propriety of issuing Resolution Nos. 07-0407 and 7902 and joined
causes with Sema, contending that Section 5 (3), Article VI of the Constitution is
"self-executing." Thus, every new province created by the ARMM Regional
Assembly is ipso facto entitled to one representative in the House of Representatives
even in the absence of a national law; and
(3) Respondent Dilangalen answered the issue in the negative on the following
grounds: (a) the "province" contemplated in Section 5 (3), Article VI of the
Constitution is one that is created by an act of Congress taking into account the
provisions in RA 7160 on the creation of provinces; (b) Section 3, Article IV of RA
9054 withheld from the ARMM Regional Assembly the power to enact measures
relating to national elections, which encompasses the apportionment of legislative
districts for members of the House of Representatives; (c) recognizing a legislative
district in every province the ARMM Regional Assembly creates will lead to the
disproportionate representation of the ARMM in the House of Representatives as the
Regional Assembly can create provinces without regard to the requirements in
Section 461 of RA 7160; and (d) Cotabato City, which has a population of less than
250,000, is not entitled to a representative in the House of Representatives.
On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral arguments
on the following issues: (1) whether Section 19, Article VI of RA 9054, delegating to the
ARMM Regional Assembly the power to create provinces, is constitutional; and (2) if in the
affirmative, whether a province created under Section 19, Article VI of RA 9054 is entitled to
one representative in the House of Representatives without need of a national law creating
a legislative district for such new province. 15
In compliance with the Resolution dated 27 November 2007, the parties in G.R. No. 177597
filed their respective Memoranda on the issues raised in the oral arguments. 16 On the
question of the constitutionality of Section 19, Article VI of RA 9054, the parties in G.R. No.
177597 adopted the following positions:
(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a
valid delegation by Congress to the ARMM of the power to create provinces under
Section 20 (9), Article X of the Constitution granting to the autonomous regions,
through their organic acts, legislative powers over "other matters as may be
authorized by law for the promotion of the general welfare of the people of the
region" and (b) as an amendment to Section 6 of RA 7160. 17 However, Sema
concedes that, if taken literally, the grant in Section 19, Article VI of RA 9054 to the
ARMM Regional Assembly of the power to "prescribe standards lower than those
mandated" in RA 7160 in the creation of provinces contravenes Section 10, Article X
of the Constitution.18 Thus, Sema proposed that Section 19 "should be construed as
prohibiting the Regional Assembly from prescribing standards x x x that do not
comply with the minimum criteria" under RA 7160. 19
(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is
unconstitutional on the following grounds: (a) the power to create provinces was not
among those granted to the autonomous regions under Section 20, Article X of the
Constitution and (b) the grant under Section 19, Article VI of RA 9054 to the ARMM
Regional Assembly of the power to prescribe standards lower than those mandated
in Section 461 of RA 7160 on the creation of provinces contravenes Section 10,
Article X of the Constitution and the Equal Protection Clause; and
(3) The COMELEC, through the OSG, joined causes with respondent Dilangalen
(thus effectively abandoning the position the COMELEC adopted in its Compliance
with the Resolution of 4 September 2007) and contended that Section 19, Article VI
of RA 9054 is unconstitutional because (a) it contravenes Section 10 and Section
6,20 Article X of the Constitution and (b) the power to create provinces was withheld
from the autonomous regions under Section 20, Article X of the Constitution.
On the question of whether a province created under Section 19, Article VI of RA 9054 is
entitled to one representative in the House of Representatives without need of a national
law creating a legislative district for such new province, Sema and respondent Dilangalen
reiterated in their Memoranda the positions they adopted in their Compliance with the
Resolution of 4 September 2007. The COMELEC deemed it unnecessary to submit its
position on this issue considering its stance that Section 19, Article VI of RA 9054 is
unconstitutional.
Josef Elvin Campos
The pendency of the petition in G.R. No. 178628 was disclosed during the oral arguments
on 27 November 2007. Thus, in the Resolution of 19 February 2008, the Court ordered G.R.
No. 178628 consolidated with G.R. No. 177597. The petition in G.R. No. 178628 echoed
Sema's contention that the COMELEC acted ultra vires in issuing Resolution No. 7902
depriving the voters of Cotabato City of a representative in the House of Representatives. In
its Comment to the petition in G.R. No. 178628, the COMELEC, through the OSG,
maintained the validity of COMELEC Resolution No. 7902 as a temporary measure pending
the enactment by Congress of the "appropriate law."
The Issues
The petitions raise the following issues:
I. In G.R. No. 177597:
(A) Preliminarily –
(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to
test the constitutionality of COMELEC Resolution No. 7902; and
(2) whether the proclamation of respondent Dilangalen as representative of
Shariff Kabunsuan Province with Cotabato City mooted the petition in G.R.
No. 177597.
(B) On the merits –
(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM
Regional Assembly the power to create provinces, cities, municipalities and
barangays, is constitutional; and
(2) if in the affirmative, whether a province created by the ARMM Regional
Assembly under MMA Act 201 pursuant to Section 19, Article VI of RA 9054
is entitled to one representative in the House of Representatives without need
of a national law creating a legislative district for such province.
II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902
is valid for maintaining the status quo in the first legislative district of Maguindanao
(as "Shariff Kabunsuan Province with Cotabato City [formerly First District of
Maguindanao with Cotabato City]"), despite the creation of the Province of Shariff
Kabunsuan out of such district (excluding Cotabato City).
The Ruling of the Court

The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is
unconstitutional insofar as it grants to the ARMM Regional Assembly the power to create
provinces and cities; (2) MMA Act 201 creating the Province of Shariff Kabunsuan is void;
and (3) COMELEC Resolution No. 7902 is valid.
On the Preliminary Matters

The Writ of Prohibition is Appropriate to Test the Constitutionality of Election Laws,
Rules and Regulations
The purpose of the writ of Certiorari is to correct grave abuse of discretion by "any tribunal,
board, or officer exercising judicial or quasi-judicial functions." 21 On the other hand, the writ
of Mandamus will issue to compel a tribunal, corporation, board, officer, or person to
perform an act "which the law specifically enjoins as a duty." 22 True, the COMELEC did not
issue Resolution No. 7902 in the exercise of its judicial or quasi-judicial functions. 23 Nor is
there a law which specifically enjoins the COMELEC to exclude from canvassing the votes
cast in Cotabato City for representative of "Shariff Kabunsuan Province with Cotabato City."
These, however, do not justify the outright dismissal of the petition in G.R. No. 177597
because Sema also prayed for the issuance of the writ of Prohibition and we have long
recognized this writ as proper for testing the constitutionality of election laws, rules, and
regulations.24
Respondent Dilangalen’s Proclamation Does Not Moot the Petition

There is also no merit in the claim that respondent Dilangalen’s proclamation as winner in
the 14 May 2007 elections for representative of "Shariff Kabunsuan Province with Cotabato
City" mooted this petition. This case does not concern respondent Dilangalen’s election.
Rather, it involves an inquiry into the validity of COMELEC Resolution No. 7902, as well as
the constitutionality of MMA Act 201 and Section 19, Article VI of RA 9054. Admittedly, the
outcome of this petition, one way or another, determines whether the votes cast in Cotabato
City for representative of the district of "Shariff Kabunsuan Province with Cotabato City" will
Josef Elvin Campos
be included in the canvassing of ballots. However, this incidental consequence is no reason
for us not to proceed with the resolution of the novel issues raised here. The Court’s ruling
in these petitions affects not only the recently concluded elections but also all the other
succeeding elections for the office in question, as well as the power of the ARMM Regional
Assembly to create in the future additional provinces.
On the Main Issues Whether the ARMM Regional Assembly Can Create the Province of
Shariff Kabunsuan
The creation of local government units is governed by Section 10, Article X of the
Constitution, which provides:
Sec. 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished or its boundary substantially altered except in accordance with the criteria
established in the local government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.
Thus, the creation of any of the four local government units – province, city, municipality or
barangay – must comply with three conditions. First, the creation of a local government unit
must follow the criteria fixed in the Local Government Code. Second, such creation must
not conflict with any provision of the Constitution. Third, there must be a plebiscite in the
political units affected.
There is neither an express prohibition nor an express grant of authority in the Constitution
for Congress to delegate to regional or local legislative bodies the power to create local
government units. However, under its plenary legislative powers, Congress can delegate to
local legislative bodies the power to create local government units, subject to reasonable
standards and provided no conflict arises with any provision of the Constitution. In fact,
Congress has delegated to provincial boards, and city and municipal councils, the power to
create barangays within their jurisdiction, 25 subject to compliance with the criteria
established in the Local Government Code, and the plebiscite requirement in Section 10,
Article X of the Constitution. However, under the Local Government Code, "only x x x an Act
of Congress" can create provinces, cities or municipalities. 261avvph
i1
Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional
Assembly the power to create provinces, cities, municipalities and barangays within the
ARMM. Congress made the delegation under its plenary legislative powers because the
power to create local government units is not one of the express legislative powers granted
by the Constitution to regional legislative bodies. 27 In the present case, the question arises
whether the delegation to the ARMM Regional Assembly of the power to create provinces,
cities, municipalities and barangays conflicts with any provision of the Constitution.
There is no provision in the Constitution that conflicts with the delegation to regional
legislative bodies of the power to create municipalities and barangays, provided Section 10,
Article X of the Constitution is followed. However, the creation of provinces and cities is
another matter. Section 5 (3), Article VI of the Constitution provides, "Each city with a
population of at least two hundred fifty thousand, or each province, shall have at least one
representative" in the House of Representatives. Similarly, Section 3 of the Ordinance
appended to the Constitution provides, "Any province that may hereafter be created, or any
city whose population may hereafter increase to more than two hundred fifty thousand shall
be entitled in the immediately following election to at least one Member x x x."
Clearly, a province cannot be created without a legislative district because it will violate
Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended
to the Constitution. For the same reason, a city with a population of 250,000 or more cannot
also be created without a legislative district. Thus, the power to create a province, or a city
with a population of 250,000 or more, requires also the power to create a legislative district.
Even the creation of a city with a population of less than 250,000 involves the power to
create a legislative district because once the city’s population reaches 250,000, the city
automatically becomes entitled to one representative under Section 5 (3), Article VI of the
Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power
to create a province or city inherently involves the power to create a legislative district.
For Congress to delegate validly the power to create a province or city, it must also validly
delegate at the same time the power to create a legislative district. The threshold issue then
Josef Elvin Campos
is, can Congress validly delegate to the ARMM Regional Assembly the power to create
legislative districts for the House of Representatives? The answer is in the negative.
Legislative Districts are Created or Reapportioned Only by an Act of Congress

Under the present Constitution, as well as in past 28 Constitutions, the power to increase the
allowable membership in the House of Representatives, and to reapportion legislative
districts, is vested exclusively in Congress. Section 5, Article VI of the Constitution provides:
SECTION 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan Manila
area in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected through
a party-list system of registered national, regional, and sectoral parties or organizations.
xxxx
(3) Each legislative district shall comprise, as far as practicable, contiguous,
compact, and adjacent territory. Each city with a population of at least two hundred
fifty thousand, or each province, shall have at least one representative.
(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this
section. (Emphasis supplied)
Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through
a law, the allowable membership in the House of Representatives. Section 5 (4) empowers
Congress to reapportion legislative districts. The power to reapportion legislative districts
necessarily includes the power to create legislative districts out of existing ones. Congress
exercises these powers through a law that Congress itself enacts, and not through a law
that regional or local legislative bodies enact. The allowable membership of the House of
Representatives can be increased, and new legislative districts of Congress can be created,
only through a national law passed by Congress. In Montejo v. COMELEC,29 we held that
the "power of redistricting x x x is traditionally regarded as part of the power (of Congress)
to make laws," and thus is vested exclusively in Congress.
This textual commitment to Congress of the exclusive power to create or reapportion

legislative districts is logical. Congress is a national legislature and any increase in its
allowable membership or in its incumbent membership through the creation of legislative
districts must be embodied in a national law. Only Congress can enact such a law. It would
be anomalous for regional or local legislative bodies to create or reapportion legislative
districts for a national legislature like Congress. An inferior legislative body, created by a
superior legislative body, cannot change the membership of the superior legislative body.
The creation of the ARMM, and the grant of legislative powers to its Regional Assembly
under its organic act, did not divest Congress of its exclusive authority to create legislative
districts. This is clear from the Constitution and the ARMM Organic Act, as amended. Thus,
Section 20, Article X of the Constitution provides:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide for
legislative powers over:
(4) Personal, family, and property relations;
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.
Josef Elvin Campos
Nothing in Section 20, Article X of the Constitution authorizes autonomous regions,
expressly or impliedly, to create or reapportion legislative districts for Congress.
On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act,
provides, "The Regional Assembly may exercise legislative power x x x except on the
following matters: x x x (k) National elections. x x x." Since the ARMM Regional
Assembly has no legislative power to enact laws relating to national elections, it cannot
create a legislative district whose representative is elected in national elections. Whenever
Congress enacts a law creating a legislative district, the first representative is always
elected in the "next national elections" from the effectivity of the law. 30
Indeed, the office of a legislative district representative to Congress is a national office,

and its occupant, a Member of the House of Representatives, is a national official.31 It
would be incongruous for a regional legislative body like the ARMM Regional Assembly to
create a national office when its legislative powers extend only to its regional territory. The
office of a district representative is maintained by national funds and the salary of its
occupant is paid out of national funds. It is a self-evident inherent limitation on the legislative
powers of every local or regional legislative body that it can only create local or regional
offices, respectively, and it can never create a national office.
To allow the ARMM Regional Assembly to create a national office is to allow its legislative
powers to operate outside the ARMM’s territorial jurisdiction. This violates Section 20,
Article X of the Constitution which expressly limits the coverage of the Regional Assembly’s
legislative powers "[w]ithin its territorial jurisdiction x x x."
The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the
exclusive nature of Congress’ power to create or reapportion legislative districts by
abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of MMA Act
201 provides that:
Except as may be provided by national law, the existing legislative district, which includes
Cotabato City as a part thereof, shall remain. (Emphasis supplied)
However, a province cannot legally be created without a legislative district because the
Constitution mandates that "each province shall have at least one representative." Thus, the
creation of the Province of Shariff Kabunsuan without a legislative district is
unconstitutional.
Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the
Each legislative district shall comprise, as far as practicable, contiguous, compact, and
adjacent territory. Each city with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative. (Emphasis supplied)
and Section 3 of the Ordinance appended to the Constitution, which states:

Any province that may hereafter be created, or any city whose population may hereafter
increase to more than two hundred fifty thousand shall be entitled in the immediately
following election to at least one Member or such number of Members as it may be
entitled to on the basis of the number of its inhabitants and according to the
standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The
number of Members apportioned to the province out of which such new province was
created or where the city, whose population has so increased, is geographically located
shall be correspondingly adjusted by the Commission on Elections but such adjustment
shall not be made within one hundred and twenty days before the election. (Emphasis
supplied)
serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on 29
October 2006, is automatically entitled to one member in the House of Representatives in
the 14 May 2007 elections. As further support for her stance, petitioner invokes the
statement in Felwa that "when a province is created by statute, the corresponding
representative district comes into existence neither by authority of that statute — which
cannot provide otherwise — nor by apportionment, but by operation of the Constitution,
without a reapportionment."
The contention has no merit.
Josef Elvin Campos
First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA 4695),
creating the provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao and
providing for congressional representation in the old and new provinces, was
unconstitutional for "creati[ng] congressional districts without the apportionment provided in
the Constitution." The Court answered in the negative, thus:
The Constitution ordains:

"The House of Representatives shall be composed of not more than one hundred and
twenty Members who shall be apportioned among the several provinces as nearly as may
be according to the number of their respective inhabitants, but each province shall have at
least one Member. The Congress shall by law make an apportionment within three years
after the return of every enumeration, and not otherwise. Until such apportionment shall
have been made, the House of Representatives shall have the same number of Members
as that fixed by law for the National Assembly, who shall be elected by the qualified electors
from the present Assembly districts. Each representative district shall comprise as far as
practicable, contiguous and compact territory."
Pursuant to this Section, a representative district may come into existence: (a)
indirectly, through the creation of a province — for "each province shall have at least
one member" in the House of Representatives; or (b) by direct creation of several
representative districts within a province. The requirements concerning the
apportionment of representative districts and the territory thereof refer only to the second
method of creation of representative districts, and do not apply to those incidental to the
creation of provinces, under the first method. This is deducible, not only from the general
tenor of the provision above quoted, but, also, from the fact that the apportionment therein
alluded to refers to that which is made by an Act of Congress. Indeed, when a province is
created by statute, the corresponding representative district, comes into existence neither
by authority of that statute — which cannot provide otherwise — nor by apportionment, but
by operation of the Constitution, without a reapportionment.
There is no constitutional limitation as to the time when, territory of, or other conditions
under which a province may be created, except, perhaps, if the consequence thereof were
to exceed the maximum of 120 representative districts prescribed in the Constitution, which
is not the effect of the legislation under consideration. As a matter of fact, provinces have
been created or subdivided into other provinces, with the consequent creation of additional
representative districts, without complying with the aforementioned
requirements.32 (Emphasis supplied)
Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly created
legislative districts "indirectly" through a special law enacted by Congress creating a
province and (2) the creation of the legislative districts will not result in breaching the
maximum number of legislative districts provided under the 1935 Constitution. Felwa does
not apply to the present case because in Felwa the new provinces were created by
a national law enacted by Congress itself. Here, the new province was created merely by
a regional law enacted by the ARMM Regional Assembly.
What Felwa teaches is that the creation of a legislative district by Congress does not
emanate alone from Congress’ power to reapportion legislative districts, but also from
Congress’ power to create provinces which cannot be created without a legislative district.
Thus, when a province is created, a legislative district is created by operation of the
Constitution because the Constitution provides that "each province shall have at least one
representative" in the House of Representatives. This does not detract from the
constitutional principle that the power to create legislative districts belongs exclusively to
Congress. It merely prevents any other legislative body, except Congress, from creating
provinces because for a legislative body to create a province such legislative body must
have the power to create legislative districts. In short, only an act of Congress can trigger
the creation of a legislative district by operation of the Constitution. Thus, only Congress
has the power to create, or trigger the creation of, a legislative district.
Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to Shariff
Kabunsuan upon its creation, this will leave Cotabato City as the lone component of the first
legislative district of Maguindanao. However, Cotabato City cannot constitute a legislative
district by itself because as of the census taken in 2000, it had a population of only 163,849.
Josef Elvin Campos
To constitute Cotabato City alone as the surviving first legislative district of Maguindanao
will violate Section 5 (3), Article VI of the Constitution which requires that "[E]ach city with a
population of at least two hundred fifty thousand x x x, shall have at least one
representative."
Second. Sema’s theory also undermines the composition and independence of the House
of Representatives. Under Section 19, 33 Article VI of RA 9054, the ARMM Regional
Assembly can create provinces and cities within the ARMM with or without regard to the
criteria fixed in Section 461 of RA 7160, namely: minimum annual income of ₱20,000,000,
and minimum contiguous territory of 2,000 square kilometers or minimum population of
250,000.34 The following scenarios thus become distinct possibilities:
(1) An inferior legislative body like the ARMM Regional Assembly can create 100 or
more provinces and thus increase the membership of a superior legislative body, the
House of Representatives, beyond the maximum limit of 250 fixed in the Constitution
(unless a national law provides otherwise);
(2) The proportional representation in the House of Representatives based on one
representative for at least every 250,000 residents will be negated because the
ARMM Regional Assembly need not comply with the requirement in Section 461(a)
(ii) of RA 7160 that every province created must have a population of at least
250,000; and
(3) Representatives from the ARMM provinces can become the majority in the
House of Representatives through the ARMM Regional Assembly’s continuous
creation of provinces or cities within the ARMM.
The following exchange during the oral arguments of the petition in G.R. No. 177597
highlights the absurdity of Sema’s position that the ARMM Regional Assembly can create
provinces:
Justice Carpio:
So, you mean to say [a] Local Government can create legislative district[s] and pack
Congress with their own representatives [?]
Atty. Vistan II:35
Yes, Your Honor, because the Constitution allows that.
Justice Carpio:
So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x x and,
therefore, they can have thirty-five (35) new representatives in the House of
Representatives without Congress agreeing to it, is that what you are saying? That can be
done, under your theory[?]
Atty. Vistan II:
Yes, Your Honor, under the correct factual circumstances.
Justice Carpio:
Under your theory, the ARMM legislature can create thirty-five (35) new provinces, there
may be x x x [only] one hundred thousand (100,000) [population], x x x, and they will each
have one representative x x x to Congress without any national law, is that what you are
saying?
Atty. Vistan II:
Without law passed by Congress, yes, Your Honor, that is what we are saying.
xxxx
Justice Carpio:
So, they can also create one thousand (1000) new provinces, sen[d] one thousand (1000)
representatives to the House of Representatives without a national law[,] that is legally
possible, correct?
Atty. Vistan II:
Yes, Your Honor.36 (Emphasis supplied)
Neither the framers of the 1987 Constitution in adopting the provisions in Article X on
regional autonomy,37 nor Congress in enacting RA 9054, envisioned or intended these
disastrous consequences that certainly would wreck the tri-branch system of government
under our Constitution. Clearly, the power to create or reapportion legislative districts
cannot be delegated by Congress but must be exercised by Congress itself. Even the
ARMM Regional Assembly recognizes this.
The Constitution empowered Congress to create or reapportion legislative districts, not the
regional assemblies. Section 3 of the Ordinance to the Constitution which states, "[A]ny
Josef Elvin Campos
province that may hereafter be created x x x shall be entitled in the immediately following
election to at least one Member," refers to a province created by Congress itself through a
national law. The reason is that the creation of a province increases the actual membership
of the House of Representatives, an increase that only Congress can decide. Incidentally, in
the present 14th Congress, there are 219 38 district representatives out of the maximum 250
seats in the House of Representatives. Since party-list members shall constitute 20 percent
of total membership of the House, there should at least be 50 party-list seats available in
every election in case 50 party-list candidates are proclaimed winners. This leaves only 200
seats for district representatives, much less than the 219 incumbent district representatives.
Thus, there is a need now for Congress to increase by law the allowable membership of the
House, even before Congress can create new provinces.
It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution.
Section 20, Article X of the Constitution expressly provides that the legislative powers of
regional assemblies are limited "[w]ithin its territorial jurisdiction and subject to the
provisions of the Constitution and national laws, x x x." The Preamble of the ARMM
Organic Act (RA 9054) itself states that the ARMM Government is established "within the
framework of the Constitution." This follows Section 15, Article X of the Constitution which
mandates that the ARMM "shall be created x x x within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines."
The present case involves the creation of a local government unit that necessarily involves
also the creation of a legislative district. The Court will not pass upon the constitutionality of
the creation of municipalities and barangays that does not comply with the criteria
established in Section 461 of RA 7160, as mandated in Section 10, Article X of the
Constitution, because the creation of such municipalities and barangays does not involve
the creation of legislative districts. We leave the resolution of this issue to an appropriate
case.
In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the ARMM
Regional Assembly the power to create provinces and cities, is void for being contrary to
Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 3 of
the Ordinance appended to the Constitution. Only Congress can create provinces and cities
because the creation of provinces and cities necessarily includes the creation of legislative
districts, a power only Congress can exercise under Section 5, Article VI of the Constitution
and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional
Assembly cannot create a province without a legislative district because the Constitution
mandates that every province shall have a legislative district. Moreover, the ARMM
Regional Assembly cannot enact a law creating a national office like the office of a district
representative of Congress because the legislative powers of the ARMM Regional
Assembly operate only within its territorial jurisdiction as provided in Section 20, Article X of
the Constitution. Thus, we rule that MMA Act 201, enacted by the ARMM Regional
Assembly and creating the Province of Shariff Kabunsuan, is void.
Resolution No. 7902 Complies with the Constitution

Consequently, we hold that COMELEC Resolution No. 7902, preserving the geographic and
legislative district of the First District of Maguindanao with Cotabato City, is valid as it
merely complies with Section 5 of Article VI and Section 20 of Article X of the Constitution,
as well as Section 1 of the Ordinance appended to the Constitution.
WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054

UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the Autonomous
Region in Muslim Mindanao the power to create provinces and cities. Thus, we
declare VOID Muslim Mindanao Autonomy Act No. 201 creating the Province of Shariff
Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902 is VALID.
Let a copy of this ruling be served on the President of the Senate and the Speaker of the
House of Representatives.
SO ORDERED.
Footnotes
Josef Elvin Campos
1
In G.R. No. 177597, for the writs of certiorari, prohibition and mandamus; in G.R.
No. 178628, for "declaratory relief" and for the writs of prohibition and mandamus.
2
The petitioner in G.R. No. 177597, Bai Sandra S. A. Sema (Sema), further seeks to
compel the COMELEC to exclude from the canvassing the votes cast in Cotabato
City for representative of the legislative district in question in the 14 May 2007
elections. On the other hand, the petitioner in G.R. No. 178628, Perfecto Marquez,
prays that the Court order the COMELEC to conduct a special election for
representative of the "First District of Maguindanao with Cotabato City."
3
Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat,
and Upi. The second legislative district is composed of 19 municipalities (Talitay,
Talayan, Guindulungan, Datu Saudi Ampatuan, Datu Piang, Shariff Aguak, Datu
Unsay, Mamasapano, South Upi, Ampatuan, Datu Abdullah Sangki, Buluan, Datu
Paglas, Gen, S.K. Pendatun, Sultan Sa Barongis, Rajah Buayan, Pagalungan,
Pagagawan and Paglat).
4
The enactment of the organic acts for the autonomous regions of the Cordilleras
and Muslim Mindanao is mandated under Sections 18 and 19, Article X of the 1987
Constitution.
5
The provision reads:
SECTION 19. Creation, Division or Abolition of Provinces, Cities,
Municipalities or Barangay. — The Regional Assembly may create, divide,
merge, abolish, or substantially alter boundaries of provinces, cities,
municipalities, or barangay in accordance with the criteria laid down by
Republic Act No. 7160, the Local Government Code of 1991, subject to the
approval by a majority of the votes cast in a plebiscite in the political units
directly affected. The Regional Assembly may prescribe standards lower
than those mandated by Republic Act No. 7160, the Local Government
Code of 1991, in the creation, division, merger, abolition, or alteration of the
boundaries of provinces, cities, municipalities, or barangay. Provinces,
cities, municipalities, or barangay created, divided, merged, or whose
boundaries are altered without observing the standards prescribed by
Republic Act No. 7160, the Local Government Code of 1991, shall not be
entitled to any share of the taxes that are allotted to the local governments
units under the provisions of the Code.
The financial requirements of the provinces, cities, municipalities, or barangay
so created, divided, or merged shall be provided by the Regional Assembly
out of the general funds of the Regional Government.
The holding of a plebiscite to determine the will of the majority of the voters of
the areas affected by the creation, division, merger, or whose boundaries are
being altered as required by Republic Act No. 7160, the Local Government
Code of 1991, shall, however, be observed.
The Regional Assembly may also change the names of local government
units, public places and institutions, and declare regional holidays. (Emphasis
supplied)
Before the enactment of RA 9054, the power to create provinces, cities,
municipalities, and barangays was vested in Congress (for provinces, cities
and municipalities) and in the sangguniang panlalawigan and sangguniang
panlungsod (for barangays). (See Sections 384, 448, and 460 of Republic
Act No. 7160 or the Local Government Code of 1991.)
6
Sultan Mastura (created from Sultan Kudarat), Northern Kabuntulan (created from
Kabuntulan) and Datu Blah Sinsuat (created from Upi).
7
The Memorandum reads in pertinent parts:
The record shows the former province of Maguindanao was divided into two
new provinces (Shariff Kabunsuan and Maguindanao), in view of Muslim
Mindanao Autonomy Act (MMAA) No. 201, which authority was conferred to
under Section 17, Article VI of Republic Act No. 9054 giving the ARMM, thru
its Regional Legislative Assembly, the power to legislate laws including the
enactment of the Local Government Code of ARMM.
The newly created province of Shariff Kabunsuan comprises the
municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog,
Parang, Sultan Kudarat, Sultan Mastura, Upi and Datu Blah, including
Cotabato City [which] belongs to the first district of Maguindanao province.
It must be emphasized that Cotabato City is not included as part of ARMM
although geographically located within the first district of the former
Josef Elvin Campos
Maguindanao province. Cotabato City is not voting for provincial officials. This
is the reason why Cotabato City was not specifically mentioned as part of the
newly created province of Shariff Kabunsuan.
Geographically speaking since [sic] Cotabato City is located within the newly
created province of Shariff Kabunsuan having been bounded by
municipalities of Sultan Kudarat, Datu Odin Sinsuat and Kabuntalan as its
nearest neighbors. Following the rule in establishing legislative district, it shall
comprise, as far as practicable, contiguous, compact and adjacent territory.
However, legally speaking, it may arise question of legality [sic] if Cotabato
City will be appended as part of the newly created Shariff Kabunsuan
province. Under our Constitution [it is] only Congress that shall make a
reapportionment of legislative districts based on the standards provided for
under Section 5(1) of Article VI.
xxxx
In order to avoid controversy on the matter, pending the enactment of
appropriate law by Congress, it would be prudent and logically feasible to
maintain status quo with Cotabato City as part of Shariff Kabunsuan in the
first district of Maguindanao.
8
Resolution No. 7845 pertinently provides:
WHEREAS, the Province of Maguindanao consists of two legislative districts,
with Cotabato City as part of the first legislative district.
WHEREAS, Muslim Mindanao Autonomy Act No. 201 provided for the
creation of the new Province of Shariff Kabunsuan comprising the
municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog,
Parang, Sultan Kudarat, Sultan Mastura and Upi, all of the first legislative
district of the mother Province of Maguindanao, except Cotabato City which is
not part of the Autonomous Region in Muslim Mindanao; while the remaining
municipalities of Talisay, Talayan, Guindulungan, Datu Saudi Ampatuan,
Datu Piang, Shariff Aguak, Datu Unsay, Mamasapano, South Upi, Ampatuan,
Datu Abdullah Sangki, Buluan, Datu Paglas, Gen. S. K. Pendatun, Sultan Sa
Barongis, Rajah Buayan, Pagalungan, Pagagawan, and Paglat, all of the
second legislative district of the mother Province of Maguindanao, shall
remain with said province;
WHEREAS, the last paragraph of Section 5 of Muslim Mindanao Autonomy
(MMA) Act No. 201 provides that "(e)xcept as may be provided by national
law, the existing legislative district, which includes Cotabato City as a part
thereof, shall remain.";
WHEREAS, by reason of said provision of MMA Act No. 201, the first
legislative district of the Province of Maguindanao is now made up of
Cotabato City only, and its second legislative district, the municipalities of
Talisay, Talayan, Guindulungan, Datu Saudi Ampatuan, Datu Piang, Shariff
Aguak, Datu Unsay, Mamasapano, South Upi, Ampatuan, Datu Abdullah
Sangki, Buluan, Datu Paglas, Gen. S. K. Pendatun, Sultan Sa Barongis,
Rajah Buayan, Pagalungan, Pagagawan, and Paglat[.] (Emphasis supplied)
In the earlier Resolution No. 7801, dated 11 January 2007, the COMELEC
allocated one legislative seat each for the provinces of Maguindanao and
Shariff Kabunsuan for the 14 May 2007 elections.
9
Resolution No. 7902 reads in full:
This pertains to the amendment of Minute Resolution No. 07-0407 dated
March 6, 2007, entitled, "IN THE MATTER OF THE MEMORANDUM OF
ATTY. WYNNE B. ASDALA, ACTING DIRECTOR III, LAW DEPARTMENT,
RELATIVE TO THE STUDY/RECOMMENDATION OF SAID DEPARTMENT
RE: CONVERSION OF THE FIRST DISTRICT OF MAGUINDANAO INTO A
REGULAR PROVINCE PER MINUTE RESOLUTION NO. 07-0297 DATED
FEBRUARY 20, 2007". The dispositive portion of which reads:
"Considering the foregoing, the Commission RESOLVED, as it hereby
RESOLVES, to adopt the recommendation of the Law Department that
pending the enactment of the appropriate law by Congress, to maintain status
quo with Cotabato City as part of Shariff Kabunsuan in the First District of
Maguindanao."
The Commission RESOLVED, as it hereby RESOLVES, to amend the
pertinent portion of Minute Resolution No. 07-0407 to now read, as follows[:]
Josef Elvin Campos
["]Considering the foregoing, the Commission RESOLVED, as it hereby
RESOLVES, that the district shall be known as Shariff Kabunsuan
Province with Cotabato City (formerly First District of Maguindanao with
Cotabato City)."
Let the Executive Director advise the Sangguniang Panlalawigan of Cotabato
City accordingly. (Emphasis in the original)
10
"Each legislative district shall comprise, as far as practicable, contiguous, compact,
and adjacent territory. Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one representative."
11
"Any province that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall be entitled in the
immediately following election to at least one Member or such number of Members
as it may be entitled to on the basis of the number of its inhabitants and according to
the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution.
The number of Members apportioned to the province out of which such new province
was created or where the city, whose population has so increased, is geographically
located shall be correspondingly adjusted by the Commission on Elections but such
adjustment shall not be made within one hundred and twenty days before the
election."
12
Consistent with her claim that Cotabato City is not part of Shariff Kabunsuan’s
legislative district, petitioner filed with the COMELEC a petition for the disqualification
of respondent Dilangalen as candidate for representative of that province (docketed
as SPA No. A07-0).
13
Respondent Dilangalen asserts, and petitioner does not dispute, that as of 2000,
Cotabato City had a population of 163,849, falling short of the minimum population
requirement in Section 5 (3), Article VI of the Constitution which provides: "Each
legislative district shall comprise, as far as practicable, contiguous, compact, and
adjacent territory. Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one representative." (Emphasis
supplied)
16
The Court also required Sema to submit with her Memorandum the certifications
from the Department of Finance, the Lands Management Bureau, the National
Statistics Office, and the Department of Interior and Local Government that at the
time of the creation of Shariff Kabunsuan on 28 August 2006 it met the requisites for
the creation of a province under Section 461 of RA 7160.
17
"SEC. 6. Authority to Create Local Government Units. - A local government unit
may be created, divided, merged, abolished, or its boundaries substantially altered
either by law enacted by Congress in the case of a province, city or municipality, or
any other political subdivision, or by ordinance passed by the sangguniang
panlalawigan or sangguniang panlungsod concerned in the case of a barangay
located within its territorial jurisdiction, subject to such limitations and requirements
prescribed in this Code."
18
"SECTION 10. No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the Local Government Code and subject
to approval by a majority of the votes cast in a plebiscite in the political units directly
affected."
20
"SECTION 6. Local government units shall have a just share, as determined by
law, in the national taxes which shall be automatically released to them."
23
See, however, Macabago v. Commission on Elections (440 Phil. 683 [2002])
where the Court held that a petition for certiorari under Rule 65 will lie to question the
constitutionality of an election regulation if the COMELEC has acted capriciously or
whimsically, with grave abuse of discretion amounting to lack or excess of
jurisdiction.
24
Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571 (2001); Mutuc v.
Commission on Elections, G.R. No. L-32717, 26 November 1970, 36 SCRA 228.
30
Section 48 of Republic Act No. 8507 (Charter of Parañaque City) provides:
Section 48. Legislative District. — As a highly-urbanized city, the City of
Parañaque shall have its own legislative district with the first representative to
be elected in the next national election after the passage of this Act.
(Emphasis supplied)
Section 50 of Republic Act No. 7839 (Charter of City of Pasig) provides:
Josef Elvin Campos
Section 50. Legislative District. — As highly urbanized, the City of Pasig shall
have its own legislative district with the first representative to be elected in the
next national elections after the passage of this Act. (Emphasis supplied)
Section 58 of Republic Act No. RA 9230 provides:
Section 58. Representative District. — The City of San Jose del Monte shall
have its own representative district to commence in the next national election
after the effectivity of this Act. (Emphasis supplied)
Section 7 of Republic Act No. 9355 provides:
Section 7. Legislative District. — The Province of Dinagat Islands shall
constitute one, separate legislative district to commence in the next national
election after the effectivity of this Act. (Emphasis supplied)
31
In his Concurring Opinion in Paras v. Commission on Elections (332 Phil. 56, 66
[1996]), then Associate Justice (later Chief Justice) Hilario G. Davide, Jr. stated:
The term "regular local election" must be confined to the regular election of
elective local officials, as distinguished from the regular election of national
officials. The elective national officials are the President, Vice-President,
Senators and Congressmen. The elective local officials are Provincial
Governors, Vice-Governors of provinces, Mayors and Vice-Mayors of cities
and municipalities, Members of the Sanggunians of provinces, cities and
municipalities, punong barangays and members of the sangguniang
barangays, and the elective regional officials of the Autonomous Region of
Muslim Mindanao. These are the only local elective officials deemed
recognized by Section 2(2) of Article IX-C of the Constitution, which provides:
SEC. 2. The Commission on Elections shall exercise the following powers
and functions:
xxxx
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.
(Emphasis supplied)
34
Section 461 provides: "Requisites for Creation. — (a) A province may be created if
it has an average annual income, as certified by the Department of Finance, of not
less than Twenty million pesos (₱20,000,000.00) based on 1991 constant prices and
either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers,
as certified by the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office: Provided, That, the
creation thereof shall not reduce the land area, population, and income of the
original unit or units at the time of said creation to less than the minimum
requirements prescribed herein.
(b) The territory need not be contiguous if it comprise two (2) or more
islands or is separated by a chartered city or cities which do not
contribute to the income of the province.
(c) The average annual income shall include the income accruing to
the general fund, exclusive of special funds, trust funds, transfers and
non-recurring income."
37
Unlike the 1935 and the 1973 Constitutions, the 1987 Constitution mandates, in
Section 15, Article X, the creation of autonomous regions in the Cordilleras and
Muslim Mindanao to foster political autonomy. See Cordillera Broad Coalition v.
Commission on Audit, G.R. No. 79956, 29 January 1990, 181 SCRA 495.
38
Website of House of Representatives as of 12 May 2008.
SEPARATE OPINION
(Dissenting and Concurring)
TINGA, J.:
I agree that the petitions should be denied, but on a wholly different basis from that offered
by the majority. I cannot accede to the majority’s conclusion, burnished by reasoning most
strained, that the Regional Assembly of the Autonomous Region of Muslim Mindanao
(Regional Assembly) should be deprived of the power delegated to it by Congress to create
provinces. With this ruling, the Court has dealt another severe blow to the cause of local
autonomy.
Josef Elvin Campos
Our Constitution, in reflection of the sovereign wisdom of the people, has prescribed local
government rule as a tool for national development and welfare. The majority is
unfortunately unmindful of these considerations. The Regional Assembly and the
government of the Autonomous Region of Muslim Mindanao exercised constituent functions
in establishing the province of Shariff Kabunsuan and providing for its local government.
The majority did not bother to hear their side in these petitions, which after all, never put in
issue the constitutionality of the creation of the province. The people of Shariff Kabunsuan,
by sovereign desire and constitutional design, ratified through a plebiscite the province
named in honor of the revered figure who introduced Islam to Central Mindanao. The
majority has annihilated the province with nary a word of comfort or concern for its citizens.
Sadly, there will be no shelter for the Court from the impact of this decision, which unduly
stretches the Constitution to deny the will of the duly elected members of the Regional
Assembly, that of the constituents they represent, and most of all, that of the people of
Shariff Kabunsuan.
I.
We are dealing with two consolidated petitions which essentially raise the same arguments,
but were brought forth by two different parties laboring under different circumstances. The
petitioner in G.R. No. 177597, Bai Sandra S.A. Sema, a congressional candidate in the
2007 legislative elections who posits that the newly-created province of Shariff Kabunsuan
is entitled to its own exclusive legislative district. The petitioner in G.R. No. 178628,
Perfecto F. Marquez, suing in his capacity as a taxpayer and a resident of Cotabato
City,1 argues that with the creation of Shariff Kabunsuan, his home city cannot be conjoined
with Shariff Kabunsuan to create just one legislative district for both territories.
As narrated by the majority,2 four (4) days prior to the 14 May 2007 elections, respondent
Commission on Elections (COMELEC) promulgated Resolution No. 7902, whereby it
resolved to maintain the composition of what had been the First District of Maguindanao,
composed of Cotabato City, a chartered city, and several other municipalities, even though
these municipalities formerly belonging to Maguindanao have since been constituted as part
of the province of Shariff Kabunsuan, which was created by the Regional Assembly by
virtue of Muslim Mindanao Autonomy Act No. 201 in August of 2006.
Both petitioners challenge the notion of fusing Cotabato City, which is not a part of ARMM,
with the ARMM municipalities which now constitute the new province of Shariff Kabunsuan,
into one legislative district. To resolve that question on the merits, it is inevitable that the
Court examine the validity of the creation of Shariff Kabunsuan in the first place, and the
majority has fully adopted that approach. However, there are significant impediments that
weigh down both petitioners, and supply the cogent reason for the more prudent approach
which is to dismiss the petitions outright.
It is clear that both petitioners rely on constitutional issues in support of their petitions as
they posit that under the Constitution Shariff Kabunsuan is entitled to its own separate
legislative district. It is cardinal that the Court’s power of judicial review may be exercised in
constitutional cases only if all the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case or controversy; (2) a personal and substantial
interest of the party raising the constitutional question; (3) the exercise of judicial review is
pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the
case.3
With respect to Sema, it is plainly evident, as argued by private respondent Rep. Didagen
P. Dilangalen, that she is estopped from bringing forth the present petition. On 29 March
2007, she filed her Certificate of Candidacy before the COMELEC, declaring her candidacy
a Member of the House of Representatives representing "the Province of Shariff Kabunsuan
w/ Cotabato City."4 She recognized under oath that she was seeking election for a
legislative district that encompassed both Shariff Kabunsuan and Cotabato City, and she
should be consequently barred from disavowing the very district which she undertook to
serve if elected. Sema appears to have campaigned for election in this conjoined district,
and was accordingly defeated by Dilangalen, her votes from both Shariff Kabunsuan and
Cotabato City included in the tally.
It would indeed be difficult to assess injury for purposes of locus standi on the part of Sema
by reason of the assailed COMELEC Resolution, which after all, reaffirms the very
Josef Elvin Campos
legislative district whose seat in Congress she had sought to be elected to. Her standing to
raise the present petition is materially affected by her express consent and active campaign
for election from the legislative district which she now seeks to invalidate. A party
challenging the constitutionality of a law, act or statute must show "not only that the law is
invalid, but also that he or she has sustained or is in immediate, or imminent danger of
sustaining some direct injury as a result of its enforcement," that party has been or is about
to be, denied some right or privilege to which he or she is lawfully entitled. 5 Sema’s prior
avowal that she was running for the Shariff Kabunsuan with Cotabato City legislative
district, and her campaign for election to that district, belie the existence of injury on her part
caused by the COMELEC resolution that affirmed that very legislative district.
On the part of Marquez, he first raised his present claims through the petition in G.R. No.
179608, which was filed with this Court in July 2007, or more than two months after the May
2007 elections. As a result, could no longer ask that the holding of the said elections in the
conjoined district be restrained, and instead seeks that new or special elections be
conducted.
As earlier noted, among the requisites for the Court to be able to exercise judicial review in
constitutional cases is that the exercise of judicial review is pleaded at the earliest possible
opportunity.6 Clearly, his petition was not timely filed at the earliest possible opportunity,
which would have been at a point prior to the May 2007 elections. Worse, he filed his
petition after the voters in the affected districts had already elected a candidate of their
choosing, a sovereign act which he seeks to annul. Considering the grave implications of
the step he seeks, as well as the fact that such recourse usually smacks of opportunism
and bad faith, it is but proper for the Court to decline review unless all the established
requisites for judicial review for constitutional cases have indeed been met. Marquez does
not meet this Court’s exacting standards.
Moreover, Marquez does not have a valid cause of action before this Court. His prayer is to
compel the COMELEC to provide for new congressional elections for Cotabato City.The
relief sought does not lie simply because Rep. Dilangalen, by virtue of his electoral victory,
lawfully represents the City in addition to the Province of Shariff Kabunsuan. From another
perspective, the COMELEC does not have the requisite power to call elections, as the same
is part of the plenary legislative power. Only Congress, which was not impleaded as a party
to Marquez’s petition, has the power to set congressional elections only for Cotabato City, if
ever. Even assuming that Congress was impleaded, it would be improper for this Court to
compel Congress by judicial fiat to pass a law or resolution for the holding of such elections.
In sum, Marquez’s petition should be dismissed outright for having been filed out of time, for
lack of cause of action, and for not impleading a real party-in-interest.
II.
One might argue that it is imperative for the Court to resolve the substantive issues, since
the situation may emerge again. However, the exception in exercising judicial review if the
case is capable of repetition yet evading review applies only if the case is "moot and
academic,"7 and not when the petitioners lack the requisite standing, have no cause of
action, and have failed to join a proper party, which is the case here. In addition, it is entirely
possible that between now and the next elections, either Congress or the Regional
Assembly would pass new legislation concerning the composition or status of Shariff
Kabunsuan, thereby changing the legal complexion and factual milieu of the situation. If that
occurs, the questions that will be facing the Court then should a challenge be mounted may
very well be different from those currently befacing us.
However, it is apparent that the ponente wishes to settle these cases on the merits. In doing
so, he frames two issues–whether Congress can delegate to the Regional Assembly the
power to create provinces; and whether the Regional Assembly has the power to create
legislative districts. However, with due respect, the majority’s discussion makes quite an
easy leap when it abruptly fuses these two issues. Worse, the majority fails to take into
account certain fundamental constitutional principles which have immense bearing in these
cases. The resulting analysis is incomplete and uninformed of the full constitutional milieu
under which these petitions should be resolved.
Josef Elvin Campos
My own framework firstly considers two important principles which underlie the issues
presented before us–the rule on delegation of powers, and the constitutionally-ordained
paradigms of local government and local autonomy. Without the influence of these
principles, any resulting analysis of the two issues cast by the majority will be atomistic in
nature.
III.
The laws we are presently impelled to interpret involve multiple instances of Congress
delegating power to the Regional Assembly. Explicity, Rep. Act No. 9054 delegates to the
Regional Assembly the power to create provinces and other local government units, though
subject to certain specified limitations. The majority likewise asserts that through that
mechanism, Congress has also delegated to the Regional Assembly the power to create
legislative districts.
The fundamental principles on delegation of powers bear review.
The Constitution expressly vests legislative power in the Congress of the Philippines,
consisting of a Senate and a House of Representatives. 8 Traditionally, the delegation of
Congress of its legislative powers had been frowned upon. "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 delegare 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." 9
However, the strict application of the non-delegation doctrine has, in recent times, been
relaxed, if not minimized altogether, particularly in the context of regulatory jurisdiction of
administrative agencies. In every industrialized nation, administrative agencies, which are
generally part of the executive branch, have been granted considerable lawmaking
power.10 "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." 11
In the context of delegation of legislative powers to local governments, a noted authority on

the subject has this to say:
The state legislative power – that is, the exercise of the policy-making judgment and
discretion on state matters that state constitutions vest and recognize in the legislature –
cannot be delegated to some other person or body but must rest with the legislature itself.
Thus, the legislature cannot delegate to a commission the power to determine the form of
government, powers and functions of proposed municipalities since these matters require
legislative judgment. But the details of organization of its own government can be left to a
municipality, limited only by general state law; and such basic state powers as the police
power, taxing power, and power of eminent domain can be, and almost always are,
delegated to local governments for their use for local purposes. The rule against delegation
of state legislative authority is no barrier to the delegation of powers of local self
government to local units. x x x12
Notwithstanding the exceptions that have been carved to the rule of non-delegation, it bears
notice that while our Constitution broadly endows legislative powers to Congress it also
specifically conditions the emergence of certain rights, duties and obligations upon the
enactment of a law oriented towards such constitutional predicate. These include the
prohibition of political dynasties as may be defined by law, 13 the reasonable conditions
prescribed by law relating to full public disclosure of all the State’s transactions involving
public interest;14 the manner by which Philippine citizenship may be lost or reacquired; 15 the
date of regular elections for members of Congress; 16 the manner of conduct of special
elections to fill in congressional vacancies;17 the authorization of the President to exercise
emergency powers;18 the system for initiative and referendum; 19 the salaries of the
President and Vice-President;20 the creation and allocation of jurisdiction of lower courts 21 ;
and on many other matters of grave import.
Josef Elvin Campos
May these specified functions be delegated by Congress to another body? These specific
functions are non-delegable, for they are textually committed by the Constitution to
Congress. Perhaps it is possible to segregate these particular functions to those which
would, even absent constitutional definition, anyway fall within the plenary legislative power,
and those which are not plenary in nature but were especially designated to Congress by
the Constitution. Still, in either case, only Congress, and no other body, can carry out that
function. As to those powers which would normally fall within the plenary legislative power,
the Constitution has decided to doubly emphasize that it is the Congress which is so
empowered to perform such tasks. With respect to the non-plenary functions assigned to
Congress, it is clear that the assignment implies the delegation by the Constitution to
Congress of specific, wholly original functions.
There shall be further discussion on this point in relation to the questions currently
presented. Before we get there, I wish to emphasize a second constitutional principle, local
governance and autonomy, that should likewise bear on our deliberations.
IV.
The 1987 Constitution ushered in a new era in local government rule for all citizens, and
local autonomy rule for Muslim Mindanao and the Cordillera region. This new paradigm is
crystallized under Article X of the Constitution.
Section 2, Article X guarantees that the territorial and political subdivisions in the Philippines
shall enjoy local autonomy. The guarantee of local autonomy is actualized through a local
government code that delineates the structure and powers of local governments, and
through constitutional measures that entitle local government units to generate their own
revenue stream and assure the same to their fair share in the national internal
revenue.22 Local government rule, in constitutional contemplation, is a live being that exists
to counterbalance the rule of the national government, and is not a mere palliative
established in the Constitution to soothe the people with the illusion of having a more direct
say in their governance.
By constitutional design, local government rule for the people of Muslim Mindanao and the
Cordilleras is even more enhanced, as they are assured of their own autonomous regions.
Section 15, Article X of the Constitution mandated that "[t]he shall be created autonomous
regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive historical and
cultural heritage, economic and social structures, and other relevant characteristics…"
Following the Constitution, Congress in 1989 passed Republic Act No. 6734, "An Act
Providing for An Organic Act for the Autonomous Region in Muslim Mindanao", leading to
the creation of the ARMM. In 2001, Congress further strengthened the Organic Act with the
passage of Rep. Act No. 9054, which among others, empowered the Assembly to create
provinces. The Organic Acts possess a special status within Philippine laws. While they are
classified as statutes, the Organic Acts are more than ordinary statutes because they enjoy
affirmation by a plebiscite, and thus could not be amended by ordinary statutes without any
plebiscite.23
In Disomangcop v. Datumanong,24 the Court explained at length the vital constitutional

purposes of local autonomy:
xxx According to Commissioner Jose Nolledo, Chairman of the Committee which drafted
the provisions, it "is an indictment against the status quo of a unitary system that, to my
mind, has ineluctably tied the hands of progress in our country . . . our varying regional
characteristics are factors to capitalize on to attain national strength through
decentralization."
The idea behind the Constitutional provisions for autonomous regions is to allow the
separate development of peoples with distinctive cultures and traditions. These cultures, as
a matter of right, must be allowed to flourish.
xxx
Several commissioners echoed the pervasive sentiment in the plenary sessions in their own
inimitable way. Thus, Commissioner Bias Ople referred to the recognition that the Muslim
Mindanao and the Cordilleras "do not belong to the dominant national community" as the
justification for conferring on them a "measure of legal self-sufficiency, meaning self-
Josef Elvin Campos
government, so that they will flourish politically, economically and culturally," with the hope
that after achieving parity with the rest of the country they would "give up their own
autonomous region in favor of joining the national mainstream." For his part, the Muslim
delegate, Commissioner Ahmad Alonto, spoke of the diversity of cultures as the framework
for nation-building. Finally, excerpts of the poignant plea of Commissioner Ponciano
Bennagen deserve to be quoted verbatim:
. . . They see regional autonomy as the answer to their centuries of struggle against
oppression and exploitation. For so long, their names and identities have been debased.
Their ancestral lands have been ransacked for their treasures, for their wealth. Their
cultures have been defiled, their very lives threatened, and worse, extinguished, all in the
name of national development; all in the name of public interest; all in the name of common
good; all in the name of the right to property; all in the name of Regalian Doctrine; all in the
name of national security. These phrases have meant nothing to our indigenous
communities, except for the violation of their human rights.
x x x x x x x x x
Honorable Commissioners, we wish to impress upon you the gravity of the decision to be
made by every single one of us in this Commission. We have the overwhelming support of
the Bangsa Moro and the Cordillera Constitution. By this we mean meaningful and authentic
regional autonomy. We propose that we have a separate Article on the autonomous regions
for the Bangsa Moro and Cordillera people clearly spelled out in this Constitution, instead of
prolonging the agony of their vigil and their struggle. This, too is a plea for national peace.
Let us not pass the buck to the Congress to decide on this. Let us not wash our hands of
our responsibility to attain national unity and peace and to settle this problem and rectify
past injustices, once and for all.
The need for regional autonomy is more pressing in the case of the Filipino Muslims and the
Cordillera people who have been fighting for it. Their political struggle highlights their unique
cultures and the unresponsiveness of the unitary system to their aspirations. The Moros'
struggle for self-determination dates as far back as the Spanish conquest in the Philippines.
Even at present, the struggle goes on.
Perforce, regional autonomy is also a means towards solving existing serious peace and
order problems and secessionist movements. Parenthetically, autonomy, decentralization
and regionalization, in international law, have become politically acceptable answers to
intractable problems of nationalism, separatism, ethnic conflict and threat of secession. 25
Petitioner Sema points out that among the terms in the Final Peace Agreement between the
Philippine Government and the Moro National Liberation Front was that amendments be
introduced to the original Organic Act, including one which authorized the Assembly to
"create, divide, merge, abolish or substantially alter boundaries of local government units in
the area of autonomy in accordance with the criteria laid down by law subject to approval by
a majority of the votes cast in a plebiscite called for the purpose in the political units
affected."26 Indeed, it could hardly be argued that the challenged power of the Assembly
was animated by nakedly selfish political purposes. It was, in fact, among the terms
negotiated with care by the Philippine Government with the leading armed insurgency group
in Muslim Mindanao towards the higher purpose of providing a permanent peace agreement
in the strife-torn region. It does come with a measure of surprise and disappointment that
the Solicitor General has reached a position that rejects the Final Peace Agreement
negotiated by the Government and the MNLF.
Disomangcop further crystallizes the interplay between regional autonomy and national
sovereignty, to the extent that the former is accommodated under the latter.
Regional autonomy is the degree of self-determination exercised by the local government

unit vis-à-vis the central government.
In international law, the right to self-determination need not be understood as a right to

political separation, but rather as a complex net of legal-political relations between a certain
people and the state authorities. It ensures the right of peoples to the necessary level of
autonomy that would guarantee the support of their own cultural identity, the establishment
of priorities by the community's internal decision-making processes and the management of
collective matters by themselves.
Josef Elvin Campos
If self-determination is viewed as an end in itself reflecting a preference for homogeneous,
independent nation-states, it is incapable of universal application without massive
disruption. However, if self-determination is viewed as a means to an end — that end being
a democratic, participatory political and economic system in which the rights of individuals
and the identity of minority communities are protected — its continuing validity is more
easily perceived.
Regional autonomy refers to the granting of basic internal government powers to the people
of a particular area or region with least control and supervision from the central government.
The objective of the autonomy system is to permit determined groups, with a common
tradition and shared social-cultural characteristics, to develop freely their ways of life and
heritage, exercise their rights, and be in charge of their own business. This is achieved
through the establishment of a special governance regime for certain member communities
who choose their own authorities from within the community and exercise the jurisdictional
authority legally accorded to them to decide internal community affairs.
In the Philippine setting, regional autonomy implies the cultivation of more positive means
for national integration. It would remove the wariness among the Muslims, increase their
trust in the government and pave the way for the unhampered implementation of the
development programs in the region. Again, even a glimpse of the deliberations of the
Constitutional Commission could lend a sense of the urgency and the inexorable appeal of
true decentralization:
MR. OPLE. . . . We are writing a Constitution, of course, for generations to come, not only
for the present but for our posterity. There is no harm in recognizing certain vital pragmatic
needs for national peace and solidarity, and the writing of this Constitution just happens at a
time when it is possible for this Commission to help the cause of peace and reconciliation in
Mindanao and the Cordilleras, by taking advantage of a heaven-sent opportunity. . . .
x x x x x x x x x
MR. ABUBAKAR. . . . So in order to foreclose and convince the rest of the of the Philippines
that Mindanao autonomy will be granted to them as soon as possible, more or less, to
dissuade these armed men from going outside while Mindanao will be under the control of
the national government, let us establish an autonomous Mindanao within our effort and
capacity to do so within the shortest possible time. This will be an answer to the Misuari
clamor, not only for autonomy but for independence.
x x x x x x x x x
MR. OPLE. . . . The reason for this abbreviation of the period for the consideration of the
Congress of the organic acts and their passage is that we live in abnormal times. In the
case of Muslim Mindanao and the Cordilleras, we know that we deal with questions of war
and peace. These are momentous issues in which the territorial integrity and the solidarity
of this country are being put at stake, in a manner of speaking.
We are writing a peace Constitution. We hope that the Article on Social Justice can
contribute to a climate of peace so that any civil strife in the countryside can be more
quickly and more justly resolved. We are providing for autonomous regions so that we give
constitutional permanence to the just demands and grievances of our own fellow
countrymen in the Cordilleras and in Mindanao. One hundred thousand lives were lost in
that struggle in Mindanao, and to this day, the Cordilleras is being shaken by an armed
struggle as well as a peaceful and militant struggle.
x x x x x x x x x
Rather than give opportunity to foreign bodies, no matter how sympathetic to the
Philippines, to contribute to the settlement of this issue, I think the Constitutional
Commission ought not to forego the opportunity to put the stamp of this Commission
through definitive action on the settlement of the problems that have nagged us and our
forefathers for so long.27
A necessary prerequisite of autonomy is decentralization, which typically involves delegated

power wherein a larger government chooses to delegate certain authority to more local
governments.28 Decentralization of power involves an abdication of political power in the
favor of local government units declared to be autonomous, which are free to chart their
own destiny and shape their future with minimum intervention from central
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authorities.29 What the Constitution contemplated with respect to the ARMM was political
autonomy. As explained by Justice Cortes for the Court:
It must be clarified that the constitutional guarantee of local autonomy in the Constitution
[Art. X, sec. 2] refers to the administrative autonomy of local government units or, cast in
more technical language, the decentralization of government authority [Villegas v. Subido,
G.R. No. L-31004, January 8, 1971, 37 SCRA 1]. Local autonomy is not unique to the 1987
Constitution, it being guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And
while there was no express guarantee under the 1935 Constitution, the Congress enacted
the Local Autonomy Act (R.A. No. 2264) and the Decentralization Act (R.A. No. 5185),
which ushered the irreversible march towards further enlargement of local autonomy in the
country [Villegas v. Subido, supra.]
On the other hand, the creation of autonomous regions in Muslim Mindanao and the
Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political
autonomy and not just administrative autonomy to these regions. Thus, the provision in the
Constitution for an autonomous regional government with a basic structure consisting of an
executive department and a legislative assembly and special courts with personal, family
and property law jurisdiction in each of the autonomous regions [Art. X, sec. 18]. 30
Disomangcop further elaborates on the import of political autonomy as it relates to the

ARMM:
[B]y regional autonomy, the framers intended it to mean "meaningful and authentic regional
autonomy." As articulated by a Muslim author, substantial and meaningful autonomy is "the
kind of local self-government which allows the people of the region or area the power to
determine what is best for their growth and development without undue interference or
dictation from the central government."
To this end, Section 16, Article X limits the power of the President over autonomous
regions. In essence, the provision also curtails the power of Congress over autonomous
regions. Consequently, Congress will have to re-examine national laws and make sure that
they reflect the Constitution's adherence to local autonomy. And in case of conflicts, the
underlying spirit which should guide its resolution is the Constitution's desire for genuine
local autonomy.
The diminution of Congress' powers over autonomous regions was confirmed in Ganzon v.
Court of Appeals[31 ],wherein this Court held that "the omission (of "as may be provided by
law") signifies nothing more than to underscore local governments' autonomy from
Congress and to break Congress' 'control' over local government affairs." 32
Unfortunately, the majority gives short shrift to the considerations of local autonomy, even
as such paradigm partakes of a constitutional mandate. If anything, these provisions should
dissuade against a reflexive dismissal of the provisions of the Organic Acts. It should be
emphasized that local autonomy cannot be in denigration of the Constitution. It is repeatedly
emphasized within Article X that the grant of local autonomy and the subsequent exercise of
powers by the autonomous government must remain within the confines of the Constitution.
At the same time, if there is no constitutional bar against the exercise of the powers of
government by the autonomous government in Muslim Mindanao, particularly by the
Regional Assembly, then there is no basis to thwart the constitutional design by denying
such powers to that body.
Having laid down the essential constitutional predicates, I shall proceed to dwell on the core
issues raised. May Congress delegate to the Regional Assembly the power to create
provinces? Assuming that such delegation is not barred by the Constitution, may the
exercise of such power by the Regional Assembly give rise to separate legislative districts
for such provinces thus created?
V.
There should be little debate on the origins of the power to create provinces, which had
existed as a political unit in the Philippines since the Spanish colonial period, and which all
our Constitutions have recognized as a basic level of local governments. Ever since the
emergence of our tripartite system of democratic government, the power to create provinces
have always been legislative in character. They are created by the people through their
Josef Elvin Campos
representatives in Congress, subject to direct affirmation by the very people who stand to
become the constituents of the new putative province.
May such power be delegated by Congress to a local legislative body such as the Regional
Assembly? Certainly, nothing in the Constitution bars Congress from doing so. In fact,
considering the constitutional mandate of local autonomy for Muslim Mindanao, it can be
said that such delegation is in furtherance of the constitutional design.
The only constitutional provision that concerns with the creation of provinces is Section 10,
Article X, which reads:
Section 10. No province, city, municipality or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.
Nothing in this provision specifically limits the power to create provinces, cities,
municipalities or barangays to Congress alone. The provision does embody a significant
limitation – that the creation of these political subdivisions must be in accordance with the
criteria established in the local government code, a law which is enacted by Congress. It
would thus be proper to say that the Constitution limits the ability to set forth the standards
for the creation of a province exclusively to Congress. But to say that the Constitution
confines to Congress alone the power to establish the criteria for creating provinces is
vastly different from saying that the Constitution confines to Congress alone the power to
create provinces. There is nothing in the Constitution that supports the latter proposition.
Section 10, Article X does not specifically designate Congress as the body with the power to
create provinces. As earlier stated, the power to create these political subdivisions is part of
the plenary legislative power, hence such power can be exercised by Congress even
without need of specific constitutional assignation. At the same time, the absence of
constitutional language committing Congress with the function of creating political
subdivisions ultimately denotes that such legislative function may be delegated by
Congress.
In fact, the majority actually concedes that Congress, under its plenary legislative powers,
"can delegate to local legislative bodies the power to create local government units, subject
to reasonable standards and provided no conflict arises with any provision of the
Constitution."33 As is pointed out, such delegation is operationalized by the LGC itself, which
confers to provincial boards and city and municipal councils, the general power to create
barangays within their respective jurisdictions. The Constitution does not confine the
exercise of such powers only to the national legislature, and indeed if that were the case,
the power to create barangays as granted by the LGC to local legislative bodies would be
unconstitutional
Traditionally, it has been the national legislature which has exercised the power to create
provinces. However, the 1987 Constitution ushered in a new era in devolved local
government rule, and particularly, a regime of local autonomy for Muslim Mindanao and the
Cordilleras. We recognized in Disomangcop v. Datumanong, thus:
Autonomy, as a national policy, recognizes the wholeness of the Philippine society in its
ethnolinguistic, cultural, and even religious diversities. It strives to free Philippine society of
the strain and wastage caused by the assimilationist approach. Policies emanating from the
legislature are invariably assimilationist in character despite channels being open for
minority representation. As a result, democracy becomes an irony to the minority group. 34
It bears reemphasizing that the Constitution also actualizes a preference for local
government rule, and thusly provides:
The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources,
and provide for the qualifications, election, appointment and removal, term, salaries, powers
and functions and duties of local officials, and all other matters relating to the organization
and operation of the local units.35
Attuned with enhanced local government rule, Congress had, through Rep. Act No. 9054,
taken the bold step of delegating to a local legislative assembly the power to create
provinces, albeit prudently withholding any ability to create legislative districts as well.
Section 19 of Rep. Act No. 9054 reads:
Section 19. Creation, Division or Abolition of Provinces, Cities, Municipalities or Barangay.
The Regional Assembly may create, divide, merge, abolish, or substantially alter
boundaries of provinces, cities, municipalities, or barangays in accordance with the criteria
laid down by the Republic Act No. 7160, the Local Government Code of 1991, subject to the
Josef Elvin Campos
approval by the majority of the votes cast in the plebiscite in the political units directly
affected. The Regional Assembly may prescribe standards lower than those mandated by
Republic Act No. 7160, the Local Government Code of 1991, in the creation, division,
merger, abolition, or alteration of the boundaries of provinces, cities, municipalities, or
barangay. Provinces, cities, municipalities, or barangays created, divided, merged, or
whose boundaries are altered without observing the standards prescribed by Republic Act
No. 7160, the Local Government Code of 1991, shall not be entitled to any share of the
taxes that are allotted to the local governments units under the provisions of the code.
The financial requirements of the provinces, cities and municipalities, or barangays so
created, divided, merged shall be provided by the Regional Assembly out of the general
funds of the Regional Government.
The holding of a plebiscite to determine the will of the majority of the voters of the areas
affected by the creation, division, merger, or whose boundaries are being altered as
required by Republic Act No. 7160, the Local Government Code of 1991, shall, however, be
observed.
Because this empowerment scheme is in line with a policy preferred by the Constitution, it
becomes utterly necessary to pinpoint a specific constitutional prohibition that bars
Congress from authorizing the Regional Assembly to create provinces. No such
constitutional limitation exists, and it is not the province, duty or sensible recourse of this
Court to nullify an act of Government in furtherance of a constitutional mandate and directly
ratified by the affected people if nothing in the Constitution proscribes such act.
The constitutionality of the delegated power of the Regional Assembly to create provinces is
further affirmed by the provisions in the Constitution concerning the mandatory creation of
autonomous regions in Muslim Mindanao, as found in Sections 15 to 21, Article X. The
organic act enacted by Congress for the autonomous region is to define the basic structure
of government.36 Section 20 specifically allows the organic act of autonomous regions to
provide for legislative powers over, among others, administrative organization; creation of
sources of revenues; economic, social and tourism development; and such other matters as
may be authorized by law for the promotion of the general welfare of the people of the
region. The creation of provinces within the autonomous region precisely assists these
constitutional aims under Section 20, enhancing as it does the basic administration of
government, the delivery of government services, and the promotion of the local economy.
In addition, Section 17, Article X states that "[a]ll powers, functions, and responsibilities not
granted by this Constitution or by law to the autonomous regions shall be vested in the
National Government". The original Organic Act for Muslim Mindanao did not grant to the
regional government the power to create provinces, thus at that point, such power was
properly exercised by the National Government. But the subsequent passage of Rep. Act
No. 9054 granted to the Regional Assembly the power, function and responsibility to create
provinces and other local government units which had been exercised by the National
Government.
The majority does not point to any specific constitutional prohibition barring Congress from
delegating to the Regional Assembly the power to create provinces. It does cite though that
Article 460 of the LGC provides that only by an Act of Congress may a province be created,
divided, merged, abolished or its boundary substantially altered. However, Republic Act No.
9054, which was passed ten (10) years after the LGC, unequivocally granted to the ARMM
Regional Assembly the power to create provinces, cities, municipalities and barangays
within the ARMM.
Any argument that the LGC confines to Congress the creation of provinces is muted by the
fact that ten years after the LGC was enacted by Congress, the same legislative body
conferred on the Assembly that same power within its territorial jurisdiction, thus amending
the LGC to the extent of accommodating these newly-granted powers to the Assembly.
There actually is an obvious unconstitutional dimension to Section 19, albeit one which is
not in point in this case. The provision states in part "[t]hat Regional Assembly may
prescribe standards lower than those mandated by Republic Act No. 7160, the Local
Government Code of 1991, in the creation, division, merger, abolition, or alteration of the
boundaries of provinces, cities, municipalities, or barangays." That proviso is squarely
inconsistent with Section 10, Article X, which accords to the LGC the sole criteria for the
creation, division, merger, abolition or alteration of boundaries of local government units.
Said proviso thus cannot receive recognition from this Court.
It bears noting that there is no contention presented thus far that the creation of Shariff
Kabunsuan was not in accordance with the criteria established in the LGC, thus this aspect
of unconstitutionality of Rep. Act No. 9054 may not be material to the petitions at bar.
VI.
Josef Elvin Campos
The majority unfortunately asserts that Congress may not delegate to the Regional
Assembly the power to create provinces, despite the absence of any constitutional bar in
that respect. The reasons offered for such conclusion are actually the same reasons it
submits why the Regional Assembly could not create legislative districts, as if the power to
create provinces and the power to create legislative districts were one and the same. In
contrast, I propose to pinpoint a specific constitutional provision that prohibits the Regional
Assembly from creating, directly or indirectly, any legislative district without affecting that
body’s delegated authority to create provinces.
Let us review this issue as presented before us. Notably, Republic Act No. 9054 does not
empower the Regional Assembly to create legislative districts, and MMA Act No. 201, which
created Shariff Kabunsuan, specifically disavows the creation of a new district for that
province and maintains the old legislative district shared with Cotabato City. It is the thesis
though of the petitioners that following Felwa v. Salas, 37 the creation of the new province
ipso facto established as well an exclusive legislative district for Shariff Kabunsuan, "by
operation of the Constitution."
How exactly does a legislative district come into being? In theory, Congress does not have
any express or plenary legislative power to create legislative districts, except by
reapportionment. Under the Constitution, such reapportionment occurs within three years
following the return of the census, 38 but this Court has likewise recognized that
reapportionment can also be made through a special law, such as in the charter of a new
city.39 Still, even in exercising this limited power through the constitutionally mandated
reapportionment, Congress cannot substitute its own discretion for the standards set forth in
Section 5, Article VI. And should general reapportionment made by Congress violate the
parameters set forth by the Constitution, such act may be invalidated by the Court, as it did
in Macias v. COMELEC.40
There is another constitutional provision which is of critical importance in considering
limitations in the creation of legislative districts. Section 5(1), Article VI states that "[t]he
House of Representatives shall be composed of not more than two hundred fifty members,
unless otherwise fixed by law". The provision textually commits that only through a law may
the numerical composition of Congress may be increased or reduced.
The Court has previously recognized that such law increasing the membership of the House
of Representatives need not be one specifically devoted for that purpose alone, but it may
be one that creates a province or charters a city with a population of more than 250,000. In
Tobias v. Abalos,41 the Court pronounced that the law converting Mandaluyong into a city
could likewise serve the purpose of increasing the composition of the House of
Representatives:
As to the contention that the assailed law violates the present limit on the number of
representatives as set forth in the Constitution, a reading of the applicable provision, Article
VI, Section 5 (1), as aforequoted, shows that the present limit of 250 members is not
absolute. The Constitution clearly provides that the House of Representatives shall be
composed of not more than 250 members, "unless otherwise provided by law." The
inescapable import of the latter clause is that the present composition of Congress may be
increased, if Congress itself so mandates through a legislative enactment. Therefore, the
increase in congressional representation mandated by R.A. No. 7675 is not
unconstitutional.42
This point was reemphasized by the Court in Mariano v. COMELEC: 43
These issues have been laid to rest in the recent case of Tobias v. Abalos. In said case, we
ruled that reapportionment of legislative districts may be made through a special law, such
as in the charter of a new city. The Constitution clearly provides that Congress shall be
composed of not more than two hundred fifty (250) members, unless otherwise fixed by law.
As thus worded, the Constitution did not preclude Congress from increasing its membership
by passing a law, other than a general reapportionment law. This is exactly what was done
by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's legislative
district.44
From these cases, it is evident that a law creating the province of Shariff Kabunsuan may
likewise serve the purpose of increasing the composition of the House of Representatives.
In addition, Congress generally has the power to delegate the power of creating local
government units to the appropriate local legislative assemblies. The critical question now is
thus whether Congress may delegate to local legislative assemblies the power to increase
the composition of the House of Representatives? The answer is no.
I have already pointed out that when the Constitution specifically designates a particular
function to Congress, only Congress may exercise such function, as the same is non-
delegable. The power to increase the composition of the House of Representatives is
Josef Elvin Campos
restricted by the Constitution to a law passed by Congress, which may not delegate such
law-making power to the Regional Assembly. If we were to rule that Congress may delegate
the power to increase the composition of the House of Representatives, there would be no
impediment for us to similarly rule that those other specific functions tasked by the
Constitution to Congress may be delegated as well. To repeat, these include gravely
important functions as the enactment of a law defining political dynasties; the enactment of
reasonable conditions relating to full public disclosure of all the State’s transactions
involving public interest; the manner by which Philippine citizenship may be lost or
reacquired; the date of regular elections for members of Congress; the provision for the
manner of conduct of special elections to fill in congressional vacancies; the authorization of
the President to exercise emergency powers; the prescription of a system for initiative and
referendum; the salaries of the President and Vice-President; and the creation and
allocation of jurisdiction of lower courts.
Considering that all these matters, including the composition of the House of
Representatives, are of national interest, it is but constitutionally proper that only a national
legislature has the competence to exercise these powers. And the Constitution does
textually commit to Congress alone the power to increase the membership of the House of
Representatives.
Accordingly, the petitioners’ position cannot be sustained, as Shariff Kabunsuan cannot
acquire its own legislative district unless Congress itself accedes to the passage of a law
that establishes the same. The contrary position is in denigration of the Constitution, which
limits to Congress alone the non-delegable power to fix or increase the composition of the
House of Representatives. For that, I concur with the result of the majority.
Felwa cannot apply to these petitions. Its pronouncement that the creation of a province
automatically leads to the creation of a legislative district "by operation of the Constitution"
can only apply when the province is created by Congress itself, since there is no other
constitutional impediment to the emergence of the legislative district. However, in cases
where it is a body other than Congress which has created, although validly, the legislative
district, the Constitution itself bars the emergence of an accompanying legislative district, as
this will result in an increase in the composition of the House of Representatives which can
only be accomplished through a law passed by Congress.
VII.
Even as Section 19 of Rep. Act No. 9054 constitutionally authorizes the Regional Assembly
to create provinces, there are legal limitations that constrict the discretion of that body to
exercise such power. I had earlier identified as unconstitutional the discretion of the
Regional Assembly to create local government units based on a lower standard than that
prescribed under the LGC. Another clear limitation is that the creation of provinces cannot
be authorized without the ratification through a plebiscite by the people affected by such act,
a requirement imposed by the Organic Act itself and by Section 10, Article X of the
Constitution.
The majority itself had raised an alarmist tone that allowing the Assembly to create
provinces would not lead to the unholy spectacle of whimsical provinces intended as
personal fiefdoms and created irrespective of size, shape and sense. In fact, allowing the
Regional Assembly to create provinces will not lead to hundreds or thousands, or even tens
or dozens of new provinces. Any new province will have to meet the same criteria set forth
by the LGC for the creation of provinces.
To stress how implausible the scenario of dozens-hundred-thousands of ARMM provinces
actually is, it bears reviewing what exactly is the criteria set forth under the LGC for the
creation of provinces. An Assembly-created province, just as with any other
putative province, following Section 461 of the LGC, must possess the following requisites:
(a) an average annual income, as certified by the Department of Finance, of not less than
Php20,000,000.00, such income including the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring income; (b) a contiguous
territory of at least two thousand (2,000) square kilometers, as certified by the Lands
Management Bureau (excepting when comprised of two (2) or more islands or when
separated by a chartered city or cities which do not contribute to the income of the
province), or a population of not less than 250,000 inhabitants as certified by the National
Statistics Office; (c) that the creation of the province shall not reduce the land area,
population, and income of the original unit or units at the time of said creation to less than
the minimum requirements prescribed under the Code. These standards, which should bear
upon the Assembly, would preclude the emergence of dozens, hundreds or thousands of
provinces within the relatively confined spaces of the present Autonomous Region of
Muslim Mindanao.
Josef Elvin Campos
IX.
The concerns raised by the majority on how allowing the Assembly to create provinces
would affect the composition of the national Congress are valid issues, yet the approach it
adopts is to treat autonomy as invisible and inconsequential, instead of the countervailing
constitutional principle that it actually is. It is an approach that will exacerbate political and
regional tensions within Mindanao, especially since it shuns the terms of the negotiated
peace. This decision today, sad to say, is a decisive step backwards from the previous
rulings of this Court that have been supportive of the aims of regional autonomy.
Except for the result, which I join, I respectfully dissent.
DANTE O. TINGA
Associate Justice
League of Cities of the Philippines v. Comelec (G.R. No. 176951, 18

November 2008; 21 December 2009; 24 August 2010; and 15 February
2011)
G.R. No. 176951 April 12, 2011
LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National
President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S.
Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; Municipality of Baybay, Province of Leyte;
Municipality of Bogo, Province of Cebu; Municipality of Catbalogan, Province of
Western Samar; Municipality of Tandag, Province of Surigao del Sur; Municipality of
Borongan, Province of Eastern Samar; and Municipality of Tayabas, Province of
Quezon, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177499
vs.
COMMISSION ON ELECTIONS; Municipality of Lamitan, Province of Basilan;
Municipality of Tabuk, Province of Kalinga; Municipality of Bayugan, Province of
Agusan del Sur; Municipality of Batac, Province of Ilocos Norte; Municipality of Mati,
Province of Davao Oriental; and Municipality of Guihulngan, Province of Negros
Oriental, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178056
vs.
COMMISSION ON ELECTIONS; Municipality of Cabadbaran, Province of Agusan del
Norte; Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province
of Misamis Oriental; Municipality of Naga, Cebu; and Department of Budget and
Management, Respondents.
RESOLUTION
BERSAMIN, J.:
We consider and resolve the Ad Cautelam Motion for Reconsideration filed by the
petitioners vis-à-vis the Resolution promulgated on February 15, 2011.
To recall, the Resolution promulgated on February 15, 2011 granted the Motion for
Reconsideration of the respondents presented against the Resolution dated August 24,
2010, reversed the Resolution dated August 24, 2010, and declared the 16 Cityhood Laws
— Republic Acts Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408,
9409, 9434, 9435, 9436, and 9491 — constitutional.
Now, the petitioners anchor their Ad Cautelam Motion for Reconsideration upon the
primordial ground that the Court could no longer modify, alter, or amend its judgment
declaring the Cityhood Laws unconstitutional due to such judgment having long become
final and executory. They submit that the Cityhood Laws violated Section 6 and Section 10
of Article X of the Constitution, as well as the Equal Protection Clause.
The petitioners specifically ascribe to the Court the following errors in its promulgation of the
assailed February 15, 2011 Resolution, to wit:
Josef Elvin Campos
I. THE HONORABLE COURT HAS NO JURISDICTION TO PROMULGATE THE
RESOLUTION OF 15 FEBRUARY 2011 BECAUSE THERE IS NO LONGER ANY
ACTUAL CASE OR CONTROVERSY TO SETTLE.
II. THE RESOLUTION CONTRAVENES THE 1997 RULES OF CIVIL PROCEDURE
AND RELEVANT SUPREME COURT ISSUANCES.
III. THE RESOLUTION UNDERMINES THE JUDICIAL SYSTEM IN ITS
DISREGARD OF THE PRINCIPLES OF RES JUDICATA AND THE DOCTRINE OF
IMMUTABILITY OF FINAL JUDGMENTS.
IV. THE RESOLUTION ERRONEOUSLY RULED THAT THE SIXTEEN (16)
CITYHOOD BILLS DO NOT VIOLATE ARTICLE X, SECTIONS 6 AND 10 OF THE
1987 CONSTITUTION.
V. THE SIXTEEN (16) CITYHOOD LAWS VIOLATE THE EQUAL PROTECTION
CLAUSE OF THE CONSTITUTION AND THE RIGHT OF LOCAL GOVERNMENTS
TO A JUST SHARE IN THE NATIONAL TAXES.
Ruling
Upon thorough consideration, we deny the Ad Cautelam Motion for Reconsideration for its
lack of merit.
I.
Procedural Issues
With respect to the first, second, and third assignments of errors, supra, it appears that the
petitioners assail the jurisdiction of the Court in promulgating the February 15, 2011
Resolution, claiming that the decision herein had long become final and executory. They
state that the Court thereby violated rules of procedure, and the principles of res judicata
and immutability of final judgments.
The petitioners posit that the controversy on the Cityhood Laws ended with the April 28,
2009 Resolution denying the respondents’ second motion for reconsideration vis-à-vis the
November 18, 2008 Decision for being a prohibited pleading, and in view of the issuance of
the entry of judgment on May 21, 2009.
The Court disagrees with the petitioners.
In the April 28, 2009 Resolution, the Court ruled:
By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 is
DENIED for lack of merit. The motion is denied since there is no majority that voted to
overturn the Resolution of 31 March 2009.
The Second Motion for Reconsideration of the Decision of 18 November 2008 is DENIED
for being a prohibited pleading, and the Motion for Leave to Admit Attached Petition in
Intervention dated 20 April 2009 and the Petition in Intervention dated 20 April 2009 filed by
counsel for Ludivina T. Mas, et al. are also DENIED in view of the denial of the second
motion for reconsideration. No further pleadings shall be entertained. Let entry of judgment
be made in due course.
Justice Presbitero J. Velasco, Jr. wrote a Dissenting Opinion, joined by Justices Consuelo
Ynares-Santiago, Renato C. Corona, Minita Chico-Nazario, Teresita Leonardo-De Castro,
and Lucas P. Bersamin. Chief Justice Reynato S. Puno and Justice Antonio Eduardo B.
Nachura took no part. Justice Leonardo A. Quisumbing is on leave. 1
Within 15 days from receipt of the April 28, 2009 Resolution, the respondents filed a Motion
To Amend Resolution Of April 28, 2009 By Declaring Instead That Respondents’ "Motion for
Reconsideration Of the Resolution Of March 31, 2009" And "Motion For Leave To File, And
To Admit Attached ‘Second Motion For Reconsideration Of The Decision Dated November
18, 2008’ Remain Unresolved And To Conduct Further Proceedings Thereon, arguing
therein that a determination of the issue of constitutionality of the 16 Cityhood Laws upon a
motion for reconsideration by an equally divided vote was not binding on the Court as a
valid precedent, citing the separate opinion of then Chief Justice Reynato S. Puno in
Lambino v. Commission on Elections.2
Thus, in its June 2, 2009 Resolution, the Court issued the following clarification of the April
28, 2009 Resolution, viz:
As a rule, a second motion for reconsideration is a prohibited pleading pursuant to Section
2, Rule 52 of the Rules of Civil Procedure which provides that: "No second motion for
reconsideration of a judgment or final resolution by the same party shall be entertained."
Thus, a decision becomes final and executory after 15 days from receipt of the denial of the
first motion for reconsideration.
However, when a motion for leave to file and admit a second motion for reconsideration is
granted by the Court, the Court therefore allows the filing of the second motion for
reconsideration. In such a case, the second motion for reconsideration is no longer a
prohibited pleading.
Josef Elvin Campos
In the present case, the Court voted on the second motion for reconsideration filed by
respondent cities. In effect, the Court allowed the filing of the second motion for
reconsideration. Thus, the second motion for reconsideration was no longer a prohibited
pleading. However, for lack of the required number of votes to overturn the 18 November
2008 Decision and 31 March 2009 Resolution, the Court denied the second motion for
reconsideration in its 28 April 2009 Resolution. 3
As the result of the aforecited clarification, the Court resolved to expunge from the records
several pleadings and documents, including respondents’ Motion To Amend Resolution Of
April 28, 2009 etc.
The respondents thus filed their Motion for Reconsideration of the Resolution of June 2,
2009, asseverating that their Motion To Amend Resolution Of April 28, 2009 etc. was not
another motion for reconsideration of the November 18, 2008 Decision, because it assailed
the April 28, 2009 Resolution with respect to the tie-vote on the respondents’ Second
Motion For Reconsideration. They pointed out that the Motion To Amend Resolution Of April
28, 2009 etc. was filed on May 14, 2009, which was within the 15-day period from their
receipt of the April 28, 2009 Resolution; thus, the entry of judgment had been prematurely
made. They reiterated their arguments with respect to a tie-vote upon an issue of
constitutionality.
In the September 29, 2009 Resolution, 4 the Court required the petitioners to comment on
the Motion for Reconsideration of the Resolution of June 2, 2009 within 10 days from
receipt.
As directed, the petitioners filed their Comment Ad Cautelam With Motion to Expunge.
The respondents filed their Motion for Leave to File and to Admit Attached "Reply to
Petitioners’ ‘Comment Ad Cautelam With Motion to Expunge’", together with the Reply.
On November 17, 2009, the Court resolved to note the petitioners’ Comment Ad Cautelam
With Motion to Expunge, to grant the respondents’ Motion for Leave to File and Admit Reply
to Petitioners’ Comment Ad Cautelam with Motion to Expunge, and to note the respondents’
Reply to Petitioners’ Comment Ad Cautelam with Motion to Expunge.
On December 21, 2009, the Court, resolving the Motion To Amend Resolution Of April 28,
2009 etc. and voting anew on the Second Motion For Reconsideration in order to reach a
concurrence of a majority, promulgated its Decision granting the motion and declaring the
Cityhood Laws as constitutional,5 disposing thus:
WHEREFORE, respondent LGUs’ Motion for Reconsideration dated June 2, 2009, their
"Motion to Amend the Resolution of April 28, 2009 by Declaring Instead that Respondents’
‘Motion for Reconsideration of the Resolution of March 31, 2009’ and ‘Motion for Leave to
File and to Admit Attached Second Motion for Reconsideration of the Decision Dated
November 18, 2008’ Remain Unresolved and to Conduct Further Proceedings," dated May
14, 2009, and their second Motion for Reconsideration of the Decision dated November 18,
2008 are GRANTED. The June 2, 2009, the March 31, 2009, and April 31, 2009
Resolutions are REVERSED and SET ASIDE. The entry of judgment made on May 21,
2009 must accordingly be RECALLED.
The instant consolidated petitions and petitions-in-intervention are DISMISSED. The
cityhood laws, namely Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404,
9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491 are declared VALID and
CONSTITUTIONAL.
SO ORDERED.
On January 5, 2010, the petitioners filed an Ad Cautelam Motion for Reconsideration
against the December 21, 2009 Decision.6 On the same date, the petitioners also filed a
Motion to Annul Decision of 21 December 2009. 7
On January 12, 2010, the Court directed the respondents to comment on the motions of the
petitioners.8
On February 4, 2010, petitioner-intervenors City of Santiago, City of Legazpi, and City of
Iriga filed their separate Manifestations with Supplemental Ad Cautelam Motions for
Reconsideration.9 Similar manifestations with supplemental motions for reconsideration
were filed by other petitioner-intervenors, specifically: City of Cadiz on February 15,
2010;10 City of Batangas on February 17, 2010; 11 and City of Oroquieta on February 24,
2010.12 The Court required the adverse parties to comment on the motions. 13 As directed,
the respondents complied.
On August 24, 2010, the Court issued its Resolution reinstating the November 18, 2008
Decision.14
On September 14, 2010, the respondents timely filed a Motion for Reconsideration of the
"Resolution" Dated August 24, 2010.15 They followed this by filing on September 20, 2010 a
Motion to Set "Motion for Reconsideration of the ‘Resolution’ dated August 24, 2010" for
Josef Elvin Campos
Hearing.16 On November 19, 2010, the petitioners sent in their Opposition [To the "Motion
for Reconsideration of ‘Resolution’ dated August 24, 2010"]. 17 On November 30, 2010,18 the
Court noted, among others, the petitioners’ Opposition.
On January 18, 2011,19 the Court denied the respondents’ Motion to Set "Motion for
Reconsideration of the ‘Resolution’ dated August 24, 2010" for Hearing.
Thereafter, on February 15, 2011, the Court issued the Resolution being now challenged.
It can be gleaned from the foregoing that, as the June 2, 2009 Resolution clarified, the
respondents’ Second Motion For Reconsideration was not a prohibited pleading in view of
the Court’s voting and acting on it having the effect of allowing the Second Motion For
Reconsideration; and that when the respondents filed their Motion for Reconsideration of
the Resolution of June 2, 2009 questioning the expunging of their Motion To Amend
Resolution Of April 28, 2009 etc. (which had been filed within the 15-day period from receipt
of the April 28, 2009 Resolution), the Court opted to act on the Motion for Reconsideration
of the Resolution of June 2, 2009 by directing the adverse parties through its September 29,
2009 Resolution to comment. The same permitting effect occurred when the Court, by its
November 17, 2009 Resolution, granted the respondents’ Motion for Leave to File and
Admit Reply to Petitioners’ Comment Ad Cautelam with Motion to Expunge, and noted the
attached Reply.
Moreover, by issuing the Resolutions dated September 29, 2009 and November 17, 2009,
the Court: (a) rendered ineffective the tie-vote under the Resolution of April 28, 2009 and
the ensuing denial of the Motion for Reconsideration of the Resolution of March 31, 2009 for
lack of a majority to overturn; (b), re-opened the Decision of November 18, 2008 for a
second look under reconsideration; and (c) lifted the directive that no further pleadings
would be entertained. The Court in fact entertained and acted on the respondents’ Motion
for Reconsideration of the Resolution of June 2, 2009. Thereafter, the Court proceeded to
deliberate anew on the respondents’ Second Motion for Reconsideration and ended up with
the promulgation of the December 21, 2009 Decision (declaring the Cityhood Laws valid
and constitutional).
It is also inaccurate for the petitioners to insist that the December 21, 2009 Decision
overturned the November 18, 2008 Decision on the basis of the mere Reflections of the
Members of the Court. To be sure, the Reflections were the legal opinions of the Members
and formed part of the deliberations of the Court. The reference in the December 21, 2009
Decision to the Reflections pointed out that there was still a pending incident after the April
28, 2009 Resolution that had been timely filed within 15 days from its receipt, 20 pursuant to
Section 10, Rule 51,21 in relation to Section 1, Rule 52, 22 of the Rules of Court. Again, the
Court did act and deliberate upon this pending incident, leading to the issuance of the
December 21, 2009 Decision (declaring the Cityhood Laws free from constitutional
infirmity). It was thereafter that the Court rendered its August 24, 2010 Resolution
(reinstating the November 18, 2008 Decision), to correct which the respondents’ Motion for
Reconsideration of the "Resolution" Dated August 24, 2010 was filed. And, finally, the Court
issued its February 15, 2011 Resolution, reversing and setting aside the August 24, 2010
Resolution.
It is worth repeating that the actions taken herein were made by the Court en banc strictly in
accordance with the Rules of Court and its internal procedures. There has been no
irregularity attending or tainting the proceedings.
It also relevant to state that the Court has frequently disencumbered itself under
extraordinary circumstances from the shackles of technicality in order to render just and
equitable relief.23
On whether the principle of immutability of judgments and bar by res judicata apply herein,
suffice it to state that the succession of the events recounted herein indicates that the
controversy about the 16 Cityhood Laws has not yet been resolved with finality. As such,
the operation of the principle of immutability of judgments did not yet come into play. For the
same reason is an adherence to the doctrine of res judicata not yet warranted, especially
considering that the precedential ruling for this case needed to be revisited and set with
certainty and finality.
II.
Substantive Issues
The petitioners reiterate their position that the Cityhood Laws violate Section 6 and Section
10 of Article X of the Constitution, the Equal Protection Clause, and the right of local
governments to a just share in the national taxes.
The Court differs.
Congress clearly intended that the local government units covered by the Cityhood Laws be
exempted from the coverage of R.A. No. 9009. The apprehensions of the then Senate
Josef Elvin Campos
President with respect to the considerable disparity between the income requirement of ₱20
million under the Local Government Code (LGC) prior to its amendment, and the ₱100
million under the amendment introduced by R.A. No. 9009 were definitively articulated in his
interpellation of Senator Pimentel during the deliberations on Senate Bill No. 2157. The then
Senate President was cognizant of the fact that there were municipalities that then had
pending conversion bills
during the 11th Congress prior to the adoption of Senate Bill No. 2157 as R.A. No.
9009,24 including the municipalities covered by the Cityhood Laws. It is worthy of mention
that the pertinent deliberations on Senate Bill No. 2157 occurred on October 5, 2000 while
the 11th Congress was in session, and the conversion bills were then pending in the
Senate. Thus, the responses of Senator Pimentel made it obvious that R.A. No. 9009 would
not apply to the conversion bills then pending deliberation in the Senate during the 11th
Congress.
R.A. No. 9009 took effect on June 30, 2001, when the 12th Congress was incipient. By
reason of the clear legislative intent to exempt the municipalities covered by the conversion
bills pending during the 11th
Congress, the House of Representatives adopted Joint Resolution No. 29, entitled Joint
Resolution to Exempt Certain Municipalities Embodied in Bills Filed in Congress before
June 30, 2001 from the coverage of Republic Act No. 9009. However, the Senate failed to
act on Joint Resolution No. 29. Even so, the House of Representatives readopted Joint
Resolution No. 29 as
Joint Resolution No. 1 during the 12th Congress, 25 and forwarded Joint Resolution No. 1 to
the Senate for approval. Again, the Senate failed to approve Joint Resolution No. 1.
At this juncture, it is worthwhile to consider the manifestation of Senator Pimentel with
respect to Joint Resolution No. 1, to wit:
MANIFESTATION OF SENATOR PIMENTEL
House Joint Resolution No. 1 seeks to exempt certain municipalities seeking conversion
into cities from the requirement that they must have at least P100 million in income of locally
generated revenue, exclusive of the internal revenue share that they received from the
central government as required under Republic Act No. 9009.
The procedure followed by the House is questionable, to say the least. The House wants
the Senate to do away with the income requirement of P100 million so that, en masse, the
municipalities they want exempted could now file bills specifically converting them into
cities. The reason they want the Senate to do it first is that Cong. Dodo Macias, chair of the
House Committee on Local Governments, I am told, will not entertain any bill for the
conversion of municipalities into cities unless the issue of income requirement is first
hurdled. The House leadership therefore wants to shift the burden of exempting certain
municipalities from the income requirement to the Senate rather than do it itself.
That is most unusual because, in effect, the House wants the Senate to pass a blanket
resolution that would qualify the municipalities concerned for conversion into cities on the
matter of income alone. Then, at a later date, the House would pass specific bills converting
the municipalities into cities. However, income is not only the requirement for municipalities
to become cities. There are also the requirements on population and land area.
In effect, the House wants the Senate to tackle the qualification of the municipalities they
want converted into cities piecemeal and separately, first is the income under the joint
resolution, then the other requirements when the bills are file to convert specific
municipalities into cities. To repeat, this is a most unusual manner of creating cities.
My respectful suggestion is for the Senate to request the House to do what they want to do
regarding the applications of certain municipalities to become cities pursuant to the
requirements of the Local Government Code. If the House wants to exempt certain
municipalities from the requirements of the Local Government Code to become cities, by all
means, let them do their thing. Specifically, they should act on specific bills to create cities
and cite the reasons why the municipalities concerned are qualified to become cities. Only
after the House shall have completed what they are expected to do under the law would it
be proper for the Senate to act on specific bills creating cities.
In other words, the House should be requested to finish everything that needs to be done in
the matter of converting municipalities into cities and not do it piecemeal as they are now
trying to do under the joint resolution.
In my long years in the Senate, this is the first time that a resort to this subterfuge is being
undertaken to favor the creation of certain cities. I am not saying that they are not qualified.
All I am saying is, if the House wants to pass and create cities out of certain municipalities,
by all means let them do that. But they should do it following the requirements of the Local
Government Code and, if they want to make certain exceptions, they can also do that too.
Josef Elvin Campos
But they should not use the Senate as a ploy to get things done which they themselves
should do.
Incidentally, I have recommended this mode of action verbally to some leaders of the
House. Had they followed the recommendation, for all I know, the municipalities they had
envisioned to be covered by House Joint Resolution No. 1 would, by now – if not all, at least
some – have been converted into cities. House Joint Resolution No. 1, the House, in effect,
caused the delay in the approval in the applications for cityhood of the municipalities
concerned.
Lastly, I do not have an amendment to House Joint Resolution No. 1. What I am suggesting
is for the Senate to request the House to follow the procedure outlined in the Local
Government Code which has been respected all through the years. By doing so, we uphold
the rule of law
and minimize the possibilities of power play in the approval of bills converting municipalities
into cities.26
Thereafter, the conversion bills of the respondents were individually filed in the House of
Representatives, and were all unanimously and
favorably voted upon by the Members of the House of Representatives. 27 The bills, when
forwarded to the Senate, were likewise unanimously approved by the Senate. 28 The acts of
both Chambers of Congress show that the exemption clauses ultimately incorporated in the
Cityhood Laws are but the express articulations of the clear legislative intent to exempt the
respondents, without exception, from the coverage of R.A. No. 9009. Thereby, R.A. No.
9009, and, by necessity, the LGC, were amended, not by repeal but by way of the express
exemptions being embodied in the exemption clauses.
The petitioners further contend that the new income requirement of ₱100 million from locally
generated sources is not arbitrary because it is not difficult to comply with; that there are
several municipalities that have already complied with the requirement and have, in fact,
been converted into cities, such as Sta. Rosa in Laguna (R.A. No 9264), Navotas (R.A. No.
9387) and San Juan (R.A. No. 9388) in Metro Manila, Dasmariñas in Cavite (R.A. No.
9723), and Biñan in Laguna (R.A. No. 9740); and that several other municipalities have
supposedly reached the income of ₱100 million from locally generated sources, such as
Bauan in Batangas, Mabalacat in Pampanga, and Bacoor in Cavite.
The contention of the petitioners does not persuade.
As indicated in the Resolution of February 15, 2011, fifty-nine (59) existing cities had failed
as of 2006 to post an average annual income of ₱100 million based on the figures
contained in the certification dated December 5, 2008 by the Bureau of Local Government.
The large number of existing cities, virtually 50% of them, still unable to comply with the
₱100 million threshold income five years after R.A. No. 9009 took effect renders it fallacious
and probably unwarranted for the petitioners to claim that the ₱100 million income
requirement is not difficult to comply with.
In this regard, the deliberations on Senate Bill No. 2157 may prove enlightening, thus:
Senator Osmeña III. And could the gentleman help clarify why a municipality would want to
be converted into a city?
Senator Pimentel. There is only one reason, Mr. President, and it is not hidden. It is the fact
that once converted into a city, the municipality will have roughly more than three times the
share that it would be receiving over the internal revenue allotment than it would have if it
were to remain a municipality. So more or less three times or more.
Senator Osmeña III. Is it the additional funding that they will be able to enjoy from a larger
share from the internal revenue allocations?
Senator Pimentel. Yes, Mr. President.
Senator Osmeña III. Now, could the gentleman clarify, Mr. President, why in the original
Republic Act No. 7160, known as the Local Government Code of 1991, such a wide gap
was made between a municipality—what a municipality would earn—and a city? Because
essentially, to a person’s mind, even with this new requirement, if approved by Congress, if
a municipality is earning P100 million and has a population of more than 150,000
inhabitants but has less than 100 square kilometers, it would not qualify as a city.
Senator Pimentel. Yes.
Senator Osmeña III. Now would that not be quite arbitrary on the part of the municipality?
Senator Pimentel. In fact, Mr. President, the House version restores the "or". So, this is a
matter that we can very well take up as a policy issue. The chair of the committee does not
say that we should, as we know, not listen to arguments for the restoration of the word "or"
in the population or territorial requirement.
Senator Osmeña III. Mr. President, my point is that, I agree with the gentleman’s "and", but
perhaps we should bring down the area. There are certainly very crowded places in this
Josef Elvin Campos
country that are less than 10,000 hectares—100 square kilometers is 10,000 hectares.
There might only be 9,000 hectares or 8,000 hectares. And it would be unfair if these
municipalities already earning P100,000,000 in locally generated funds and have a
population of over 150,000 would not be qualified because of the simple fact that the
physical area does not cover 10,000 hectares.
Senator Pimentel. Mr. President, in fact, in Metro Manila there are any number of
municipalities. San Juan is a specific example which, if we apply the present requirements,
would not qualify: 100 square kilometers and a population of not less than 150,000.
But my reply to that, Mr. President, is that they do not have to become a city?
Senator Osmeña III. Because of the income.
Senator Pimentel. But they are already earning a lot, as the gentleman said. Otherwise, the
danger here, if we become lax in the requirements, is the metropolis-located local
governments would have more priority in terms of funding because they would have more
qualifications to become a city compared to far-flung areas in Mindanao or in the
Cordilleras, or whatever.
Therefore, I think we should not probably ease up on the requirements. Maybe we can
restore the word "or" so that if they do not have the 100 square kilometers of territory, then if
they qualify in terms of population and income, that would be all right, Mr. President.
Senator Osmeña III. Mr. President, I will not belabor the point at this time. I know that the
distinguished gentleman is considering several amendments to the Local Government
Code. Perhaps this is something that could be further refined at a later time, with his
permission.
So I would like to thank the gentleman for his graciousness in answering our questions.
Senator Pimentel. I also thank the gentleman, Mr. President. 29
The Court takes note of the fact that the municipalities cited by the petitioners as having
generated the threshold income of ₱100 million from local sources, including those already
converted into cities, are either in Metro Manila or in provinces close to Metro Manila. In
comparison, the municipalities covered by the Cityhood Laws are spread out in the different
provinces of the Philippines, including the Cordillera and Mindanao regions, and are
considerably very distant from Metro Manila. This reality underscores the danger the
enactment of R.A. No. 9009 sought to prevent, i.e., that "the metropolis-located local
governments would have more priority in terms of funding because they would have more
qualifications to become a city compared to the far-flung areas in Mindanao or in the
Cordilleras, or whatever," actually resulting from the abrupt increase in the income
requirement. Verily, this result is antithetical to what the Constitution and LGC have nobly
envisioned in favor of countryside development and national growth. Besides, this result
should be arrested early, to avoid the unwanted divisive effect on the entire country due to
the local government units closer to the National Capital Region being afforded easier
access to the bigger share in the national coffers than other local government units.
There should also be no question that the local government units covered by the Cityhood
Laws belong to a class of their own. They have proven themselves viable and capable to
become component cities of their respective provinces. They are and have been centers of
trade and commerce, points of convergence of transportation, rich havens of agricultural,
mineral, and other natural resources, and flourishing tourism spots. In his speech delivered
on the floor of the Senate to sponsor House Joint Resolution No. 1, Senator Lim recognized
such unique traits,30 viz:
It must be noted that except for Tandag and Lamitan, which are both second-class
municipalities in terms of income, all the rest are categorized by the Department of Finance
as first-class municipalities with gross income of at least P70 million as per Commission of
Audit Report for 2005. Moreover, Tandag and Lamitan, together with Borongan,
Catbalogan, and Tabuk, are all provincial capitals.
The more recent income figures of the 12 municipalities, which would have increased
further by this time, indicate their readiness to take on the responsibilities of cityhood.
Moreover, the municipalities under consideration are leading localities in their respective
provinces. Borongan, Catbalogan, Tandag, Batac and Tabuk are ranked number one in
terms of income among all the municipalities in their respective provinces; Baybay and
Bayugan are number two; Bogo and Lamitan are number three; Carcar, number four; and
Tayabas, number seven. Not only are they pacesetters in their respective provinces, they
are also among the frontrunners in their regions – Baybay, Bayugan and Tabuk are number
two income-earners in Regions VIII, XIII, and CAR, respectively; Catbalogan and Batac are
number three in Regions VIII and I, respectively; Bogo, number five in Region VII; Borongan
and Carcar are both number six in Regions VIII and VII, respectively. This simply shows
that these municipalities are viable.
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Petitioner League of Cities argues that there exists no issue with respect to the cityhood of
its member cities, considering that they became cities in full compliance with the criteria for
conversion at the time of their creation.
The Court considers the argument too sweeping. What we pointed out was that the
previous income requirement of ₱20 million was definitely not insufficient to provide the
essential government facilities, services, and special functions vis-à-vis the population of a
component city. We also stressed that the increased income requirement of ₱100 million
was not the only conclusive indicator for any municipality to survive and remain viable as a
component city. These observations were unerringly reflected in the respective incomes of
the fifty-nine (59) members of the League of Cities that have still failed, remarkably enough,
to be compliant with the new requirement of the ₱100 million threshold income five years
after R.A. No. 9009 became law.
Undoubtedly, the imposition of the income requirement of ₱100 million from local sources
under R.A. No. 9009 was arbitrary. When the sponsor of the law chose the specific figure of
₱100 million, no research or empirical data buttressed the figure. Nor was there proof that
the proposal took into account the after-effects that were likely to arise. As already
mentioned, even the danger the passage of R.A. No. 9009 sought to prevent might soon
become a reality. While the Constitution mandates that the creation of local government
units must comply with the criteria laid down in the LGC, it cannot be justified to insist that
the Constitution must have to yield to every amendment to the LGC despite such
amendment imminently producing effects contrary to the original thrusts of the LGC to
promote autonomy, decentralization, countryside development, and the concomitant
national growth.
Moreover, if we were now to adopt the stringent interpretation of the Constitution the
petitioners are espousing, we may have to apply the same restrictive yardstick against the
recently converted cities cited by the petitioners, and find two of them whose conversion
laws have also to be struck down for being unconstitutional. The two laws are R.A. No.
938731 and R.A. No. 9388,32 respectively converting the municipalities of San Juan and
Navotas into highly urbanized cities. A cursory reading of the laws indicates that there is no
indication of compliance with the requirements imposed by the LGC, for, although the two
local government units concerned presumably complied with the income requirement of ₱50
million under Section 452 of the LGC and the income requirement of ₱100 million under the
amended Section 450 of the LGC, they obviously did not meet the requirements set forth
under Section 453 of the LGC, to wit:
Section 453. Duty to Declare Highly Urbanized Status.—It shall be the duty of the President
to declare a city as highly urbanized within thirty (30) days after it shall have met the
minimum requirements prescribed in the immediately preceding Section, upon proper
application therefor and ratification in a plebiscite by the qualified voters therein.
Indeed, R.A. No. 9387 and R.A. No. 9388 evidently show that the President had not
classified San Juan and Navotas as highly urbanized cities upon proper application and
ratification in a plebiscite by the qualified voters therein. A further perusal of R.A. No. 9387
reveals that San Juan did not qualify as a highly urbanized city because it had a population
of only 125,558, contravening the required minimum population of 200,000 under Section
452 of the LGC. Such non-qualification as a component city was conceded even by Senator
Pimentel during the deliberations on Senate Bill No. 2157.
The petitioners’ contention that the Cityhood Laws violated their right to a just share in the
national taxes is not acceptable.
In this regard, it suffices to state that the share of local government units is a matter of
percentage under Section 285 of the LGC, not a specific amount. Specifically, the share of
the cities is 23%, determined on the basis of population (50%), land area (25%), and equal
sharing (25%). This share is also dependent on the number of existing cities, such that
when the number of cities increases, then more will divide and share the allocation for
cities. However, we have to note that the allocation by the National Government is not a
constant, and can either increase or decrease. With every newly converted city becoming
entitled to share the allocation for cities, the percentage of internal revenue allotment (IRA)
entitlement of each city will decrease, although the actual amount received may be more
than that received in the preceding year. That is a necessary consequence of Section 285
and Section 286 of the LGC.
As elaborated here and in the assailed February 15, 2011 Resolution, the Cityhood Laws
were not violative of the Constitution and the LGC. The respondents are thus also entitled to
their just share in the IRA allocation for cities. They have demonstrated their viability as
component cities of their respective provinces and are developing continuously, albeit
Josef Elvin Campos
slowly, because they had previously to share the IRA with about 1,500 municipalities. With
their conversion into component cities, they will have to share with only around 120 cities.
Local government units do not subsist only on locally generated income, but also depend on
the IRA to support their development. They can spur their own developments and thereby
realize their great potential of encouraging trade and commerce in the far-flung regions of
the country. Yet their potential will effectively be stunted if those already earning more will
still receive a bigger share from the national coffers, and if commercial activity will be more
or less concentrated only in and near Metro Manila.
III.
Conclusion
We should not ever lose sight of the fact that the 16 cities covered by the Cityhood Laws not
only had conversion bills pending during the 11th Congress, but have also complied with
the requirements of the LGC prescribed prior to its amendment by R.A. No. 9009. Congress
undeniably gave these cities all the considerations that justice and fair play demanded.
Hence, this Court should do no less by stamping its imprimatur to the clear and
unmistakable legislative intent and by duly recognizing the certain collective wisdom of
Congress.
WHEREFORE, the Ad Cautelam Motion for Reconsideration (of the Decision dated 15
February 2011) is denied with finality.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
DISSENTING OPINION
CARPIO, J.:
This Court has made history with its repeated flip-flopping 1 in this case.
On 18 November 2008, the Court rendered a decision declaring unconstitutional the 16
Cityhood Laws. The decision became final after the denial of two motions for
reconsideration filed by the 16 municipalities. An Entry of Judgment was made on 21 May
2009. The decision was executed (1) when the Department of Budget and Management
issued LBM (Local Budget Memorandum) No. 61 on 30 June 2009, providing for the final
Internal Revenue Allotment for 2009 due to the reversion of 16 newly created cities to
municipalities; and (2) when the Commission on Elections issued Resolution No. 8670 on
22 September 2009, directing that voters in the 16 municipalities shall vote not as cities but
as municipalities in the 10 May 2010 elections. In addition, fourteen Congressmen, having
jurisdiction over the 16 respondent municipalities, filed House Bill 6303 seeking to amend
Section 450 of the Local Government Code, as amended by Republic Act No. 9009. The
proposed amendment was intended to correct the infirmities in the Cityhood Laws as cited
by this Court in its 18 November 2008 Decision. 2
Subsequently, the Court rendered three more decisions: (1) 21 December 2009, declaring
the Cityhood Laws constitutional; (2) 24 August 2010, declaring the Cityhood
Laws unconstitutional; and (3) 15 February 2011 declaring the Cityhood
Laws constitutional. Clearly, there were three reversals or flip-flops in this case.
In the Resolution of 15 February 2011, the majority upheld the constitutionality of the 16
Cityhood Laws, declaring that (1) the Cityhood Laws do not violate Section 10, Article X of
the Constitution; and (2) the Cityhood Laws do not violate Section 6, Article X and the equal
protection clause of the Constitution.
I reiterate my unwavering position from the start – that the 16 Cityhood Laws are
unconstitutional.
I.
The Cityhood Laws are laws other than the Local Government Code.
In sustaining the constitutionality of the 16 Cityhood Laws, the majority ruled in the
Resolution of 15 February 2011 that "in effect, the Cityhood Laws amended RA No. 9009
through the exemption clauses found therein. Since the Cityhood Laws explicitly exempted
the concerned municipalities from the amendatory RA No. 9009, such Cityhood Laws are,
therefore, also amendments to the LGC itself." In the Resolution denying petitioner's
motion for reconsideration, the majority stated that "RA 9009, and, by necessity, the LGC,
were amended, x x x by way of the express exemptions embodied in the exemption
clauses."
This is egregious error.
Nowhere in the plain language of the Cityhood Laws can this interpretation be discerned.
Neither the title nor the body of the Cityhood Laws sustains such conclusion. Simply put,
there is absolutely nothing in the Cityhood Laws to support the majority decision that the
Cityhood Laws further amended the Local Government Code, which exclusively embodies
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the essential requirements for the creation of cities, including the conversion of a
municipality into a city.
An "amendment" refers to a change or modification to a previously adopted law. 3 An
amendatory law merely modifies a specific provision or provisions of a previously adopted
law.4 Indisputably, an amendatory law becomes an integral part of the law it seeks to
amend.
On the contrary, each Cityhood Law contains a uniformly worded Separability Clause
which expressly states:
Separability Clause. - If, for any reason or reasons, any part or provision of this
Charter shall be held unconstitutional, invalid or inconsistent with the Local
Government Code of 1991, the other parts or provisions hereof which are not affected
thereby shall continue to be in full force and effect. Moreover, in cases where this Charter is
silent or unclear, the pertinent provisions of the Local Government Code shall govern, if so
provided therein.5 (Emphasis supplied)
Each Cityhood Law states that if any of its provisions is "inconsistent with the Local
Government Code," the other consistent provisions "shall continue to be in full force
and effect." The clear and inescapable implication is that any provision in each
Cityhood Law that is "inconsistent with the Local Government Code" has no force
and effect – in short, void and ineffective. Each Cityhood Law expressly and
unequivocally acknowledges the superiority of the Local Government Code, and that in
case of conflict, the Local Government Code shall prevail over the Cityhood
Law. Clearly, the Cityhood Laws do not amend the Local Government Code, and the
Legislature never intended the Cityhood Laws to amend the Local Government Code. The
clear intent and express language of the Cityhood Laws is for these laws to conform to the
Local Government Code and not the other way around.
To repeat, every Cityhood Law unmistakably provides that any provision in the Cityhood
Law that is inconsistent with the Local Government Code is void. It follows that the Cityhood
Laws cannot be construed to authorize the creation of cities that have not met the prevailing
₱100 million income requirement prescribed without exception in the Local Government
Code.
Moreover, Congress, in providing in the Separability Clause that the Local Government
Code shall prevail over the Cityhood Laws, treats the Cityhood Laws as separate and
distinct from the Local Government Code. In other words, the Cityhood Laws do not form
integral parts of the Local Government Code but are separate and distinct laws. There
is therefore no question that the Cityhood Laws are laws other than the Local Government
Code. As such, the Cityhood Laws cannot stipulate an exception from the requirements for
the creation of cities, prescribed in the Local Government Code, without running afoul of the
explicit mandate of Section 10, Article X of the 1987 Constitution.
This constitutional provision reads:
No province, city, municipality, or barangay shall be created, divided, merged, abolished or
its boundary substantially altered, except in accordance with the criteria established in
the local government code and subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected. (Emphasis supplied)
The Constitution is clear. The creation of local government units must follow the criteria
established in the Local Government Code itself and not in any other law. There is only
one Local Government Code.6 To avoid discrimination and ensure uniformity and equality,
the Constitution expressly requires Congress to stipulate in the Local Government Code
itself all the criteria necessary for the creation of a city, including the conversion of a
municipality into a city. Congress cannot write such criteria in any other law, like the
Cityhood Laws.
II.
The increased income requirement of ₱100 million is neither arbitrary nor difficult to
comply.
The majority resolution of 15 February 2011 states that "the imposition of the ₱100 million
average annual income requirement for the creation of component cities
was arbitrarily made." The majority resolution further declares: "x x x there was no
evidence or empirical data, such as inflation rates, to support the choice of this amount.
The imposition of a very high income requirement of ₱100 million, increased from ₱20
million, was simply to make it extremely difficult for municipalities to become
component cities."
This is glaring error.
In stating that there is no evidence to support the increased income requirement, the
majority is requiring the Legislature, the sole law-making body under the Constitution, to
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provide evidence justifying the economic rationale, like inflation rates, for the increase in
income requirement. The Legislature, in enacting RA No. 9009, is not required by the
Constitution to show the courts data like inflation figures to support the increased income
requirement. Besides, even assuming the inflation rate is zero, this Court cannot invalidate
the increase in income requirement on such ground. A zero inflation rate does not bar
the Legislature from increasing the income requirement to convert a municipality into
a city, or increasing taxes or tax rates, or increasing capital requirements for
businesses. This Court should not venture into areas of analyses obviously beyond its
competence.
As long as the increased income requirement is not impossible to comply, such increase is
a policy determination involving the wisdom of the law, which exclusively lies within the
province of the Legislature. When the Legislature enacts laws increasing taxes, tax rates, or
capital requirements for businesses, the Court cannot refuse to apply such laws on the
ground that there is no economic justification for such increases. Economic, political or
social justifications for the enactment of laws go into the wisdom of the law, outside the
purview of judicial review. This Court cannot refuse to apply the law unless the law violates
a specific provision of the Constitution. There is plainly nothing unconstitutional in
increasing the income requirement from ₱20 million to ₱100 million because such increase
does not violate any express or implied provision of the Constitution.
The majority declares that the ₱100 million income requirement under RA No. 9009 was
imposed "simply to make it extremely difficult for the municipalities to become
component cities." In short, the majority is saying that the Legislature, out of sheer whim
or spite at municipalities, increased the income requirement from ₱20 million to ₱100
million. Thus, the majority applied the ₱20 million income requirement under the repealed
law, not the ₱100 million income requirement under the prevailing law. Yet, the majority
does not state that the ₱100 million income requirement is unconstitutional. The majority
simply refuses to apply the prevailing law, choosing instead to apply a repealed law. There
is neither law nor logic in the majority decision.
The majority's conclusion that the Legislature increased the income requirement from ₱20
million to ₱100 million "simply to make it difficult for the municipalities to become
component cities" is not only unfair to the Legislature, it is also grossly erroneous.
Contrary to the majority's baseless conclusion, the increased income requirement of ₱100
million is not at all difficult to comply. As pointed out by petitioner, the cities of San
Juan7 and Navotas,8 which met the ₱100 million income requirement, were created at the
same time as the enactment of the Cityhood Laws by the same 13th Congress. 9 Prior to
this, the City of Sta. Rosa, which also met the ₱100 million income requirement, was
created through Republic Act No. 9264. 10 Subsequently, the cities of Dasmariñas in
Cavite11 and Biñan in Laguna12 were created in full compliance with the ₱100 million income
criterion.
Further disproving the majority's erroneous conclusion, an additional twenty-one (21)
municipalities have satisfied the ₱100 million income requirement for the creation of
cities.13 Accordingly, petitioner League of Cities has endorsed the cityhood application of
these 21 municipalities.14 These municipalities are:
· Cabuyao and San Pedro (Laguna)
· Cainta, Taytay, and Binangonan (Rizal)
· Bacoor, Gen. Trias, Imus, Carmona, and Silang (Cavite)
· San Pedro (Laguna)
· Pantabangan (Nueva Ecija)
· Calaca, Sto. Tomas, Bauan and Nasugbu ( Batangas)
· Mauban in (Quezon)
· Marilao, Sta. Maria and Norzagaray (Bulacan)
· Limay (Bataan)
Compliance by these municipalities with the ₱100 million income requirement underscores
the fact that the ₱100 million income requirement is not difficult to comply at all, contrary to
the baseless and speculative conclusion in the majority decision. In short, the majority
decision is based on patently and undeniably false and erroneous premises.
Indisputably, right after the enactment of RA No. 9009, Congress passed laws converting
municipalities into cities using the new ₱100 million income requirement. Subsequently,
Congress enacted the 16 Cityhood Laws using the old ₱20 million income requirement.
Thereafter, Congress again passed laws converting additional municipalities into cities
using the ₱100 million income requirement. The 16 Cityhood Laws stick out like a sore
thumb, starkly showing an obvious violation of the equal protection clause. The Cityhood
Laws create distinctly privileged cities with only ₱20 million annual income, discriminating
Josef Elvin Campos
against cities with ₱100 million annual income created before and after the enactment of
the Cityhood Laws. This kind of discrimination is precisely what Section 10, Article X of the
Constitution seeks to prohibit when it commands that "no x x x city x x x shall be created x x
x except in accordance with the criteria established in the local government code."
The majority harp on the fact that 59 existing cities had failed as of 2006 to post an average
annual income of ₱100 million.
Suffice it to state that there is no Constitutional or statutory requirement for the
59 existing cities to comply with the ₱100 million income requirement. Obviously, these
cities were already cities prior to the amendment of the Local Government Code
providing for the increased income requirement of ₱100 million. In other words, at the
time of their creation, these cities have complied with the criteria prescribed under the old
Local Government Code for the creation of cities, and thus are not required to comply with
the ₱100 million income requirement of the prevailing Local Government Code. It is utterly
misplaced and grossly erroneous to cite the "non-compliance" by the 59 existing cities with
the increased income requirement of ₱100 million to conclude that the ₱100 million income
requirement is arbitrary and difficult to comply.
Moreover, as stated, the majority do not find the increased income requirement of ₱100
million unconstitutional or unlawful. Unless the ₱100 million income requirement violates a
provision of the Constitution or a law, such requirement for the creation of a city must be
strictly complied with. Any local government unit applying for cityhood, whether located in or
outside the metropolis and whether within the National Capital Region or not, must meet the
₱100 million income requirement prescribed by the prevailing Local Government Code.
There is absolutely nothing unconstitutional or unlawful if the ₱100 million income
requirement is easily complied with by local government units within or near the National
Capital Region. The majority's groundless and unfair discrimination against these
metropolis-located local government units must necessarily fail.
Further, that San Juan and Navotas had not allegedly been classified by the President as
highly urbanized cities, pursuant to Section 453 of the Local Government Code, does not
signify that these cities do not meet the ₱100 million income requirement. In fact, the
majority concedes that it is presumed that San Juan and Navotas cities have complied with
the ₱100 million income requirement. Besides, it is totally pointless to fault the cities of San
Juan and Navotas for an unperformed duty of the President.
III.
The reduction of the share in the Internal Revenue Allotment will adversely affect the
cities' economic situation.
In the Resolution of 15 February 2011, the majority declared that petitioner's protest against
the reduction of their just share in the Internal Revenue Allotment "all boils down to
money," criticizing petitioners for overlooking the alleged need of respondent municipalities
to become channels of economic growth in the countryside.
The majority gravely loses sight of the fact that "the members of petitioner League of Cities
are also in need of the same resources, and are responsible for development imperatives
that need to be done for almost 40 million Filipinos, as compared to only 1.3 million Filipinos
in the respondent municipalities." As pointed out by petitioner, "this is just about equal to the
population of Davao City, whose residents, on a per capita basis, receive less than half of
what respondent municipalities' residents would receive if they become cities. Stated
otherwise, for every peso that each Davaoeño receives, his counterpart in the
respondent municipality will receive more than two pesos."
In addition, the majority conveniently forgets that members of the LCP have more projects,
more contractual obligations, and more employees than respondent municipalities. If their
share in the Internal Revenue Allotment is unreasonably reduced, it is possible, even
expected, that these cities may have to lay-off workers and abandon projects, greatly
hampering, or worse paralyzing, the delivery of much needed public services in their
respective territorial jurisdictions.
Obviously, petitioner's protest does not boil down to money. It boils down to equity and
fairness, rational allocation of scarce resources, and above all, faithful compliance
with an express mandatory provision of the Constitution. No one should put a
monetary value to compliance with an express command of the Constitution. Neither should
any one, least of all this Court, disregard a patent violation of the Constitution just because
the issue also involves monetary recovery. To do so would expose the stability of the
Constitution to the corrosive vagaries of the marketplace.
IV. Not substantial compliance, but outright violation of the Constitution.
In his Concurring Opinion to the Resolution of 15 February 2011, Justice Roberto A. Abad
stated, "These new cities have not altogether been exempted from the operation of the
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Local Government Code covering income requirement. They have been expressly made
subject to the lower income requirement of the old code. There remains, therefore,
substantial compliance with the provision of Section 10, Article X of the
Constitution."
This is gross error.
There is a wide disparity – an ₱80 million difference – in the income requirement of ₱20
million under the old Local Government Code and the ₱100 million requirement under the
prevailing Local Government Code. By any reasonable yardstick known to man since the
dawn of civilization, compliance with the old income requirement, which is only 20%
compliance with the new income requirement under the prevailing law, cannot be deemed
"substantial compliance." It is like saying that those who obtain a general average of 20% in
the Bar Examinations are in "substantial compliance" with the requirement for admission to
the Bar where the highest possible score is 100%.
RA No. 9009 amended the Local Government Code precisely because the criteria in the old
Local Government Code were no longer sufficient. In short, RA No. 9009 repealed the old
income requirement of ₱20 million, a requirement that no longer exists in our statute books.
Compliance with the old income requirement is compliance with a repealed, dead, and non-
existent law – a totally useless, futile, and empty act. Worse, compliance with the old
requirement is an outright violation of the Constitution which expressly commands that
"no x x x city x x x shall be created x x x except in accordance with the criteria
established in the local government code." To repeat, applying what Justice Abad calls
"the lower income requirement of the old code" is applying a repealed, dead, and non-
existent law, which is exactly what the majority decision has done.
The invocation here of "substantial compliance" of the Constitution reminds us of what
Justice Calixto Zaldivar wrote in his dissenting opinion in Javellana v. Executive
Secretary:15 "It would be indulging in sophistry to maintain that the voting in the citizens
assemblies amounted to a substantial compliance with the requirements prescribed in
Section 1 of Article XV of the 1935 Constitution." The same can be said in this case.
A final point. There must be strict compliance with the express command of the Constitution
that "no city x x x shall be created x x x except in accordance with the criteria
established in the local government code." Substantial compliance is insufficient
because it will discriminate against all other cities that were created before and after the
enactment of the Cityhood Laws in strict compliance with the criteria in the Local
Government Code, as amended by RA No. 9009. The conversion of municipalities into new
cities means an increase in the Internal Revenue Allotment of the former municipalities and
a corresponding decrease in the Internal Revenue Allotment of all other existing cities.
There must be strict, not only substantial, compliance with the constitutional requirement
because the economic lifeline of existing cities may be seriously affected. Thus, the
invocation of "substantial compliance" with constitutional requirements is clearly misplaced
in this case.
V. Conclusion
To repeat, the Constitution expressly requires Congress to stipulate in the Local
Government Code itself all the criteria necessary for the creation of a city, including the
conversion of a municipality into a city. To avoid discrimination and ensure uniformity and
equality, such criteria cannot be embodied in any other law except the Local Government
Code. In this case, the Cityhood Laws, which are unmistakably laws other than the Local
Government Code, provide an exemption from the increased income requirement for the
creation of cities under Section 450 of the Local Government Code, as amended by RA No.
9009. Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article X of
the Constitution.
Moreover, by express provision in the Separability Clause of each Cityhood Law, in case of
inconsistency between the Cityhood Law and the Local Government Code, the latter shall
prevail. Thus, the ₱100 million income requirement in the Local Government Code prevails
over the ₱20 million income requirement under the Cityhood Laws.1avvphil
Finally, this Court must be true to its sworn duty to uphold, defend, and protect the
Constitution fully and faithfully, without "indulging in sophistry" or seeking refuge behind a
patently dubious invocation of "substantial compliance" with the Constitution.
Accordingly, I vote to GRANT the motion for reconsideration of the League of Cities of the
Philippines.
ANTONIO T. CARPIO
Associate Justice
Navarro v. Ermita, G.R. No. 180050, 10 February 2010 and Resolution

Josef Elvin Campos
dated 12 April 2011; Min. Res., G.R. No. 180050, Navarro v. Executive
Secretary Ermita, September 11, 2012
G.R. No. 180050 April 12, 2011
RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the
Philippines; Senate of the Philippines, represented by the SENATE PRESIDENT;
House of Representatives, represented by the HOUSE SPEAKER; GOVERNOR
ROBERT ACE S. BARBERS, representing the mother province of Surigao del Norte;
GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of
Dinagat Islands, Respondents,
CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T. MATUGAS, HON. ARTURO
CARLOS A. EGAY, JR., HON. SIMEON VICENTE G. CASTRENCE, HON. MAMERTO D.
GALANIDA, HON. MARGARITO M. LONGOS, and HON. CESAR M.
BAGUNDOL, Intervenors.
RESOLUTION
NACHURA, J.:
For consideration of the Court is the Urgent Motion to Recall Entry of Judgment dated
October 20, 2010 filed by Movant-Intervenors 1 dated and filed on October 29, 2010, praying
that the Court (a) recall the entry of judgment, and (b) resolve their motion for
reconsideration of the July 20, 2010 Resolution.
To provide a clear perspective of the instant motion, we present hereunder a brief
background of the relevant antecedents—
On October 2, 2006, the President of the Republic approved into law Republic Act (R.A.)
No. 9355 (An Act Creating the Province of Dinagat Islands). 2 On December 3, 2006, the
Commission on Elections (COMELEC) conducted the mandatory plebiscite for the
ratification of the creation of the province under the Local Government Code (LGC). 3 The
plebiscite yielded 69,943 affirmative votes and 63,502 negative votes. 4 With the approval of
the people from both the mother province of Surigao del
Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim set
of provincial officials who took their oath of office on January 26, 2007. Later, during the
May 14, 2007 synchronized elections, the Dinagatnons elected their new set of provincial
officials who assumed office on July 1, 2007. 5
On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F. Bernal and Rene O.
Medina, former political leaders of Surigao del Norte, filed before this Court a petition for
certiorari and prohibition (G.R. No. 175158) challenging the constitutionality of R.A. No.
9355.6 The Court dismissed the petition on technical grounds. Their motion for
reconsideration was also denied.7
Undaunted, petitioners, as taxpayers and residents of the Province of Surigao del Norte,
filed another petition for certiorari8 seeking to nullify R.A. No. 9355 for being
unconstitutional. They alleged that the creation of Dinagat as a new province, if
uncorrected, would perpetuate an illegal act of Congress, and would unjustly deprive the
people of Surigao del Norte of a large chunk of the provincial territory, Internal Revenue
Allocation (IRA), and rich resources from the area. They pointed out that when the law was
passed, Dinagat had a land area of 802.12 square kilometers only and a population of only
106,951, failing to comply with Section 10, Article X of the Constitution and of Section 461
of the LGC, on both counts, viz.—
Constitution, Article X – Local Government
Section 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code and subject to the approval by a majority of the
votes cast in a plebiscite in the political units directly affected.
LGC, Title IV, Chapter I
Section 461. Requisites for Creation. – (a) A province may be created if it has an average
annual income, as certified by the Department of Finance, of not less than Twenty million
pesos (₱20,000,000.00) based on 1991 constant prices and either of the following
requisites:
(i) a continuous territory of at least two thousand (2,000) square kilometers, as
certified by the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office:
Josef Elvin Campos
Provided, That, the creation thereof shall not reduce the land area, population, and
income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or more islands or is
province.
(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, trust funds, transfers, and non-recurring income.
(Emphasis supplied.)
On February 10, 2010, the Court rendered its Decision 9 granting the petition.10 The Decision
declared R.A. No. 9355 unconstitutional for failure to comply with the requirements on
population and land area in the creation of a province under the LGC. Consequently, it
declared the proclamation of Dinagat and the election of its officials as null and void. The
Decision likewise declared as null and void the provision on Article 9(2) of the Rules and
Regulations Implementing the LGC (LGC-IRR), stating that, "[t]he land area requirement
shall not apply where the proposed province is composed of one (1) or more islands" for
being beyond the ambit of Article 461 of the LGC, inasmuch as such exemption is not
expressly provided in the law.11
The Republic, represented by the Office of the Solicitor General, and Dinagat filed their
respective motions for reconsideration of the Decision. In its Resolution 12 dated May 12,
2010,13 the Court denied the said motions.14
Unperturbed, the Republic and Dinagat both filed their respective motions for leave of court
to admit their second motions for reconsideration, accompanied by their second motions for
reconsideration. These motions were eventually "noted without action" by this Court in its
June 29, 2010 Resolution.15
Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for Leave to Intervene
and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated
May 12, 2010. They alleged that the COMELEC issued Resolution No. 8790, relevant to
this case, which provides—
RESOLUTION NO. 8790
WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously
components of the First Legislative District of the Province of Surigao del Norte. In
December 2006 pursuant to Republic Act No. 9355, the Province of Dinagat Island[s] was
created and its creation was ratified on 02 December 2006 in the Plebiscite for this purpose;
WHEREAS, as a province, Dinagat Islands was, for purposes of the May 10, 2010 National
and Local Elections, allocated one (1) seat for Governor, one (1) seat for Vice Governor,
one (1) for congressional seat, and ten (10) Sangguniang Panlalawigan seats pursuant to
Resolution No. 8670 dated 16 September 2009;
WHEREAS, the Supreme Court in G.R. No. 180050 entitled "Rodolfo Navarro, et al., vs.
Executive Secretary Eduardo Ermita, as representative of the President of the Philippines,
et al." rendered a Decision, dated 10 February 2010, declaring Republic Act No. 9355
unconstitutional for failure to comply with the criteria for the creation of a province
prescribed in Sec. 461 of the Local Government Code in relation to Sec. 10, Art. X, of the
1987 Constitution;
WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above decision
of the Supreme Court;
WHEREAS, the electoral data relative to the: (1) position for Member, House of
Representatives representing the lone congressional district of Dinagat Islands, (2) names
of the candidates for the aforementioned position, (3) position for Governor, Dinagat
Islands, (4) names of the candidates for the said position, (5) position of the Vice Governor,
(6) the names of the candidates for the said position, (7) positions for the ten (10)
Sangguniang Panlalawigan Members and, [8] all the names of the candidates for
Sangguniang Panlalawigan Members, have already been configured into the system and
can no longer be revised within the remaining period before the elections on May 10, 2010.
NOW, THEREFORE, with the current system configuration, and depending on whether the
Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the
Commission RESOLVED, as it hereby RESOLVES, to declare that:
a. If the Decision is reversed, there will be no problem since the current system
configuration is in line with the reconsidered Decision, meaning that the Province of
Dinagat Islands and the Province of Surigao del Norte remain as two (2) separate
provinces;
Josef Elvin Campos
b. If the Decision becomes final and executory before the election, the Province of
Dinagat Islands will revert to its previous status as part of the First Legislative
District, Surigao del Norte.
But because of the current system configuration, the ballots for the Province of
Dinagat Islands will, for the positions of Member, House of Representatives,
Governor, Vice Governor and Members, Sangguniang Panlalawigan, bear only the
names of the candidates for the said positions.
Conversely, the ballots for the First Legislative District of Surigao del Norte, will, for
the position of Governor, Vice Governor, Member, House of Representatives, First
District of Surigao del Norte and Members, Sangguniang Panlalawigan, show only
candidates for the said position. Likewise, the whole Province of Surigao del Norte,
will, for the position of Governor and Vice Governor, bear only the names of the
candidates for the said position[s].
Consequently, the voters of the Province of Dinagat Islands will not be able to vote
for the candidates of Members, Sangguniang Panlalawigan, and Member, House [of]
Representatives, First Legislative District, Surigao del Norte, and candidates for
Governor and Vice Governor for Surigao del Norte. Meanwhile, voters of the First
Legislative District of Surigao del Norte, will not be able to vote for Members,
Sangguniang Panlalawigan and Member, House of Representatives, Dinagat
Islands. Also, the voters of the whole Province of Surigao del Norte, will not be able
to vote for the Governor and Vice Governor, Dinagat Islands. Given this situation, the
Commission will postpone the elections for Governor, Vice Governor, Member,
House of Representatives, First Legislative District, Surigao del Norte, and
Members, Sangguniang Panlalawigan, First Legislative District, Surigao del Norte,
because the election will result in [a] failure to elect, since, in actuality, there are no
candidates for Governor, Vice Governor, Members, Sangguniang Panlalawigan, First
Legislative District, and Member, House of Representatives, First Legislative District
(with Dinagat Islands) of Surigao del Norte.
c. If the Decision becomes final and executory after the election, the Province of
Dinagat Islands will revert to its previous status as part of the First Legislative District
of Surigao del Norte. The result of the election will have to be nullified for the same
reasons given in Item "b" above. A special election for Governor, Vice Governor,
Member, House of Representatives, First Legislative District of Surigao del Norte,
and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with
Dinagat Islands) will have to be conducted.
xxxx
SO ORDERED.
They further alleged that, because they are the duly elected officials of Surigao del Norte
whose positions will be affected by the nullification of the election results in the event that
the May 12, 2010 Resolution is not reversed, they have a legal interest in the instant case
and would be directly affected by the declaration of nullity of R.A. No. 9355. Simply put,
movants-intervenors’ election to their respective offices would necessarily be annulled since
Dinagat Islands will revert to its previous status as part of the First Legislative District of
Surigao del Norte and a special election will have to be conducted for governor, vice
governor, and House of Representatives member and Sangguniang Panlalawigan member
for the First Legislative District of Surigao del Norte. Moreover, as residents of Surigao del
Norte and as public servants representing the interests of their constituents, they have a
clear and strong interest in the outcome of this case inasmuch as the reversion of Dinagat
as part of the First Legislative District of Surigao del Norte will affect the latter province such
that: (1) the whole administrative set-up of the province will have to be restructured; (2) the
services of many employees will have to be terminated; (3) contracts will have to be
invalidated; and (4) projects and other developments will have to be discontinued. In
addition, they claim that their rights cannot be adequately pursued and protected in any
other proceeding since their rights would be foreclosed if the May 12, 2010 Resolution
would attain finality.
In their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors
raised three (3) main arguments to challenge the above Resolution, namely: (1) that the
passage of R.A. No. 9355 operates as an act of Congress amending Section 461 of the
LGC; (2) that the exemption from territorial contiguity, when the intended province consists
of two or more islands, includes the exemption from the application of the minimum land
area requirement; and (3) that the Operative Fact Doctrine is applicable in the instant case.
In the Resolution dated July 20, 2010, 16 the Court denied the Motion for Leave to Intervene
and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated
Josef Elvin Campos
May 12, 2010 on the ground that the allowance or disallowance of a motion to intervene is
addressed to the sound discretion of the Court, and that the appropriate time to file the said
motion was before and not after the resolution of this case.
On September 7, 2010, movants-intervenors filed a Motion for Reconsideration of the July
20, 2010 Resolution, citing several rulings 17 of the Court, allowing intervention as an
exception to Section 2, Rule 19 of the Rules of Court that it should be filed at any time
before the rendition of judgment. They alleged that, prior to the May 10, 2010 elections,
their legal interest in this case was not yet existent. They averred that prior to the May 10,
2010 elections, they were unaware of the proceedings in this case. Even for the sake of
argument that they had notice of the pendency of the case, they pointed out that prior to the
said elections, Sol T. Matugas was a simple resident of Surigao del Norte, Arturo Carlos A.
Egay, Jr. was a member of the Sangguniang Panlalawigan of the Second District of Surigao
del Norte, and Mamerto D. Galanida was the Municipal Mayor of Socorro, Surigao del
Norte, and that, pursuant to COMELEC Resolution No. 8790, it was only after they were
elected as Governor of Surigao del Norte, Vice Governor of Surigao del Norte and
Sangguniang Panlalawigan Member of the First District of Surigao del Norte, respectively,
that they became possessed with legal interest in this controversy.
On October 5, 2010, the Court issued an order for Entry of Judgment, stating that the
decision in this case had become final and executory on May 18, 2010. Hence, the above
motion.
At the outset, it must be clarified that this Resolution delves solely on the instant Urgent
Motion to Recall Entry of Judgment of movants-intervenors, not on the second motions for
reconsideration of the original parties, and neither on Dinagat’s Urgent Omnibus Motion,
which our
esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagat’s third motion for
reconsideration. Inasmuch as the motions for leave to admit their respective motions for
reconsideration of the May 12, 2010 Resolution and the aforesaid motions for
reconsideration were already noted without action by the Court, there is no reason to treat
Dinagat’s Urgent Omnibus Motion differently. In relation to this, the Urgent Motion to Recall
Entry of Judgment of movants-intervenors could not be considered as a second motion for
reconsideration to warrant the application of Section 3, Rule 15 of the Internal Rules of the
Supreme Court.18 It should be noted that this motion prays for the recall of the entry of
judgment and for the resolution of their motion for reconsideration of the July 20, 2010
Resolution which remained unresolved. The denial of their motion for leave to intervene and
to admit motion for reconsideration of the May 12, 2010 Resolution did not rule on the
merits of the motion for reconsideration of the May 12, 2010 Resolution, but only on the
timeliness of the intended intervention. Their motion for reconsideration of this denial
elaborated on movants-intervenors’ interest in this case which existed only after judgment
had been rendered. As such, their motion for intervention and their motion for
reconsideration of the May 12, 2010 Resolution merely stand as an initial reconsideration of
the said resolution.
With due deference to Mr. Justice Brion, there appears nothing in the records to support the
claim that this was a ploy of respondents’ legal tactician to reopen the case despite an entry
of judgment. To be sure, it is actually COMELEC Resolution No. 8790 that set this
controversy into motion anew. To reiterate, the pertinent portion of the Resolution reads:
c. If the Decision becomes final and executory after the election, the Province of Dinagat
Islands will revert to its previous status as part of the First Legislative District of Surigao del
Norte. The result of the election will have to be nullified for the same reasons given in Item
"b" above. A special election for Governor, Vice Governor, Member, House of
Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang
Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be
conducted. (Emphasis supplied.)
Indeed, COMELEC Resolution No. 8790 spawned the peculiar circumstance of proper party
interest for movants-intervenors only with the specter of the decision in the main case
becoming final and executory. More importantly, if the intervention be not entertained, the
movants-intervenors would be left with no other remedy as regards to the impending
nullification of their election to their respective positions. Thus, to the Court’s mind, there is
an imperative to grant the Urgent Motion to Recall Entry of Judgment by movants-
intervenors.
It should be remembered that this case was initiated upon the filing of the petition for
certiorari way back on October 30, 2007. At that time, movants-intervenors had nothing at
stake in the outcome of this case. While it may be argued that their interest in this case
should have commenced upon the issuance of COMELEC Resolution No. 8790, it is
Josef Elvin Campos
obvious that their interest in this case then was more imaginary than real. This is because
COMELEC Resolution No. 8790 provides that should the decision in this case attain finality
prior to the May 10, 2010 elections, the election of the local government officials stated
therein would only have to be postponed. Given such a scenario, movants-intervenors
would not have suffered any injury or adverse effect with respect to the reversion of Dinagat
as part of Surigao del Norte since they would simply have remained candidates for the
respective positions they have vied for and to which they have been elected.
For a party to have locus standi, one must allege "such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions." Because constitutional cases are often public actions in which the relief sought
is likely to affect other persons, a preliminary question frequently arises as to this interest in
the constitutional question raised.19
It cannot be denied that movants-intervenors will suffer direct injury in the event their Urgent
Motion to Recall Entry of Judgment dated October 29, 2010 is denied and their Motion for
Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the
Resolution dated May 12, 2010 is denied with finality. Indeed, they have sufficiently shown
that they have a personal and substantial interest in the case, such that if the May 12, 2010
Resolution be not reconsidered, their election to their respective positions during the May
10, 2010 polls and its concomitant effects would all be nullified and be put to naught. Given
their unique circumstances, movants-intervenors should not be left without any remedy
before this Court simply because their interest in this case became manifest only after the
case had already been decided. The consequences of such a decision would definitely work
to their disadvantage, nay, to their utmost prejudice, without even them being parties to the
dispute. Such decision would also violate their right to due process, a right that cries out for
protection. Thus, it is imperative that the movants-intervenors be heard on the merits of their
cause. We are not only a court of law, but also of justice and equity, such that our position
and the dire repercussions of this controversy should be weighed on the scales of justice,
rather than dismissed on account of mootness.
The "moot and academic" principle is not a magical formula that can automatically dissuade
the courts from resolving a case. Courts will decide cases, otherwise moot and academic, if:
(1) there is a grave violation of the Constitution; (2) there is an exceptional character of the
situation and the paramount public interest is involved; (3) the constitutional issue raised
requires formation of controlling principles to guide the bench, the bar, and the public; and
(4) the case is capable of repetition yet evading review. 20 The second exception attends this
case.
This Court had taken a liberal attitude in the case of David v. Macapagal-Arroyo, 21 where
technicalities of procedure on locus standi were brushed aside, because the constitutional
issues raised were of paramount public interest or of transcendental importance deserving
the attention of the Court. Along parallel lines, the motion for intervention should be given
due course since movants-intervenors have shown their substantial legal interest in the
outcome of this case, even much more than petitioners themselves, and because of the
novelty, gravity, and weight of the issues involved.
Undeniably, the motion for intervention and the motion for reconsideration of the May 12,
2010 Resolution of movants-intervenors is akin to the right to appeal the judgment of a
case, which, though merely a statutory right that must comply with the requirements of the
rules, is an essential part of our judicial system, such that courts should proceed with
caution not to deprive a party of the right to question the judgment and its effects, and
ensure that every party-litigant, including those who would be directly affected, would have
the amplest opportunity for the proper and just disposition of their cause, freed from the
constraints of technicalities.22
Verily, the Court had, on several occasions, sanctioned the recall entries of judgment in light
of attendant extraordinary circumstances. 23 The power to suspend or even disregard rules
of procedure can be so pervasive and compelling as to alter even that which this Court itself
had already declared final.24 In this case, the compelling concern is not only to afford the
movants-intervenors the right to be heard since they would be adversely affected by the
judgment in this case despite not being original parties thereto, but also to arrive at the
correct interpretation of the provisions of the LGC with respect to the creation of local
government units. In this manner, the thrust of the Constitution with respect to local
autonomy and of the LGC with respect to decentralization and the attainment of national
goals, as hereafter elucidated, will effectively be realized.
Josef Elvin Campos
On the merits of the motion for intervention, after taking a long and intent look, the Court
finds that the first and second arguments raised by movants-intervenors deserve affirmative
consideration.
It must be borne in mind that the central policy considerations in the creation of local
government units are economic viability, efficient administration, and capability to deliver
basic services to their constituents. The criteria prescribed by the LGC, i.e., income,
population and land area, are all designed to accomplish these results. In this light,
Congress, in its collective wisdom, has debated on the relative weight of each of these three
criteria, placing emphasis on which of them should enjoy preferential consideration.
Without doubt, the primordial criterion in the creation of local government units, particularly
of a province, is economic viability. This is the clear intent of the framers of the LGC. In this
connection, the following excerpts from congressional debates are quoted hereunder—
HON. ALFELOR. Income is mandatory. We can even have this doubled because we
thought…
CHAIRMAN CUENCO. In other words, the primordial consideration here is the economic
viability of the new local government unit, the new province?
xxxx
HON. LAGUDA. The reason why we are willing to increase the income, double than the
House version, because we also believe that economic viability is really a minimum. Land
area and population are functions really of the viability of the area, because you have an
income level which would be the trigger point for economic development, population will
naturally increase because there will be an immigration. However, if you disallow the
particular area from being converted into a province because of the population problems in
the beginning, it will never be able to reach the point where it could become a province
simply because it will never have the economic take off for it to trigger off that economic
development.
Now, we’re saying that maybe Fourteen Million Pesos is a floor area where it could pay for
overhead and provide a minimum of basic services to the population. Over and above that,
the provincial officials should be able to trigger off economic development which will attract
immigration, which will attract new investments from the private sector. This is now the
concern of the local officials. But if we are going to tie the hands of the proponents, simply
by telling them, "Sorry, you are now at 150 thousand or 200 thousand," you will never be
able to become a province because nobody wants to go to your place. Why? Because you
never have any reason for economic viability.
xxxx
CHAIRMAN PIMENTEL. Okay, what about land area?
HON. LUMAUIG. 1,500 square kilometers
HON. ANGARA. Walang problema ‘yon, in fact that’s not very critical, ‘yong land area
because…
CHAIRMAN PIMENTEL. Okay, ya, our, the Senate version is 3.5, 3,500 square meters, ah,
square kilometers.
HON. LAGUDA. Ne, Ne. A province is constituted for the purpose of administrative
efficiency and delivery of basic services.
CHAIRMAN PIMENTEL. Right.
HON. LAGUDA. Actually, when you come down to it, when government was instituted,
there is only one central government and then everybody falls under that. But it was later on
subdivided into provinces for purposes of administrative efficiency.
CHAIRMAN PIMENTEL. Okay.
HON. LAGUDA. Now, what we’re seeing now is that the administrative efficiency is no
longer there precisely because the land areas that we are giving to our governors is so wide
that no one man can possibly administer all of the complex machineries that are needed.
Secondly, when you say "delivery of basic services," as pointed out by Cong. Alfelor, there
are sections of the province which have never been visited by public officials, precisely
because they don’t have the time nor the energy anymore to do that because it’s so wide.
Now, by compressing the land area and by reducing the population requirement, we are, in
effect, trying to follow the basic policy of why we are creating provinces, which is to deliver
basic services and to make it more efficient in administration.
CHAIRMAN PIMENTEL. Yeah, that’s correct, but on the assumption that the province is
able to do it without being a burden to the national government. That’s the assumption.
HON. LAGUDA. That’s why we’re going into the minimum income level. As we said, if we
go on a minimum income level, then we say, "this is the trigger point at which this
administration can take place."25
Josef Elvin Campos
Also worthy of note are the requisites in the creation of a barangay, a municipality, a city,
and a province as provided both in the LGC and the LGC-IRR, viz.—
For a Barangay:
LGC: SEC. 386. Requisites for Creation. – (a) A barangay may be created out of a
contiguous territory which has a population of at least two thousand (2,000) inhabitants as
certified by the National Statistics Office except in cities and municipalities within Metro
Manila and other metropolitan political subdivisions or in highly urbanized cities where such
territory shall have a certified population of at least five thousand (5,000) inhabitants:
Provided, That the creation thereof shall not reduce the population of the original barangay
or barangays to less than the minimum requirement prescribed herein.
To enhance the delivery of basic services in the indigenous cultural communities,
barangays may be created in such communities by an Act of Congress,
notwithstanding the above requirement.
(b) The territorial jurisdiction of the new barangay shall be properly identified by
metes and bounds or by more or less permanent natural boundaries. The territory
need not be contiguous if it comprises two (2) or more islands.
(c) The governor or city mayor may prepare a consolidation plan for barangays,
based on the criteria prescribed in this Section, within his territorial jurisdiction. The
plan shall be submitted to the sangguniang panlalawigan or sangguniang
panlungsod concerned for appropriate action. In the case of municipalities within the
Metropolitan Manila area and other metropolitan political subdivisions, the barangay
consolidation plan can be prepared and approved by the sangguniang bayan
concerned.
LGC-IRR: ARTICLE 14. Barangays. – (a) Creation of barangays by the sangguniang
panlalawigan shall require prior recommendation of the sangguniang bayan.
(b) New barangays in the municipalities within MMA shall be created only by Act of
Congress, subject to the limitations and requirements prescribed in this Article.
(c) Notwithstanding the population requirement, a barangay may be created in the
indigenous cultural communities by Act of Congress upon recommendation of the
LGU or LGUs where the cultural community is located.
(d) A barangay shall not be created unless the following requisites are present:
(1) Population – which shall not be less than two thousand (2,000)
inhabitants, except in municipalities and cities within MMA and other
metropolitan political subdivisions as may be created by law, or in highly-
urbanized cities where such territory shall have a population of at least five
thousand (5,000) inhabitants, as certified by the NSO. The creation of a
barangay shall not reduce the population of the original barangay or
barangays to less than the prescribed minimum/
(2) Land Area – which must be contiguous, unless comprised by two (2) or
more islands. The territorial jurisdiction of a barangay sought to be created
shall be properly identified by metes and bounds or by more or less
permanent natural boundaries.
Municipality:
LGC: SEC. 442. Requisites for Creation. – (a) A municipality may be created if it has an
average annual income, as certified by the provincial treasurer, or at least Two million five
hundred thousand pesos (P2,500,000.00) for the last two (2) consecutive years based on
the 1991 constant prices; a population of at least twenty-five thousand (25,000) inhabitants
as certified by the National Statistics Office; and a contiguous territory of at least fifty (50)
square kilometers as certified by the Lands
Management Bureau: Provided, That the creation thereof shall not reduce the land
area, population or income of the original municipality or municipalities at the time of
said creation to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created municipality shall be properly
identified by metes and bounds. The requirement on land area shall not apply where
the municipality proposed to be created is composed of one (1) or more islands. The
territory need not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general fund
of the municipality concerned, exclusive of special funds, transfers and non-recurring
income.
(d) Municipalities existing as of the date of effectivity of this Code shall continue to
exist and operate as such. Existing municipal districts organized pursuant to
presidential issuances or executive orders and which have their respective set of
Josef Elvin Campos
elective municipal officials holding office at the time of the effectivity of this Code
shall henceforth be considered regular municipalities.
LGC-IRR: ARTICLE 13. Municipalities. – (a) Requisites for Creation – A municipality shall
not be created unless the following requisites are present:
(i) Income – An average annual income of not less than Two Million Five Hundred
Thousand Pesos (₱2,500,000.00), for the immediately preceding two (2) consecutive
years based on 1991 constant prices, as certified by the provincial treasurer. The
average annual income shall include the income accruing to the general fund,
exclusive of special funds, special accounts, transfers, and nonrecurring income;
(ii) Population – which shall not be less than twenty five thousand (25,000)
inhabitants, as certified by NSO; and
(iii) Land area – which must be contiguous with an area of at least fifty (50) square
kilometers, as certified by LMB. The territory need not be contiguous if it comprises
two (2) or more islands. The requirement on land area shall not apply where the
proposed municipality is composed of one (1) or more islands. The territorial
jurisdiction of a municipality sought to be created shall be properly identified by
metes and bounds.
The creation of a new municipality shall not reduce the land area, population, and
income of the original LGU or LGUs at the time of said creation to less than the
prescribed minimum requirements. All expenses incidental to the creation shall be
borne by the petitioners.
City:
LGC: SEC. 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may
be converted into a component city if it has an average annual income, as certified by the
Department of Finance, of at least Twenty million pesos (₱20,000,000.00) for the last two
(2) consecutive years based on 1991 constant prices, and if it has either of the following
requisities:
(i) a contiguous territory of at least one hundred (100) square kilometers, as
certified by the Lands Management Bureau; or,
(ii) a population of not less than one hundred fifty thousand (150,000)
inhabitants, as certified by the National Statistics Office: Provided, That, the
creation thereof shall not reduce the land area, population, and income of the
original unit or units at the time of said creation to less than the minimum
requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by
metes and bounds. The requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more islands. The territory need
not be contiguous if it comprises two (2) or more islands.
fund, exclusive of special funds, transfers, and non-recurring income.
LGC-IRR: ARTICLE 11. Cities. – (a) Requisites for creation – A city shall not be created
unless the following requisites on income and either population or land area are present:
(1) Income – An average annual income of not less than Twenty Million Pesos
(₱20,000,000.00), for the immediately preceding two (2) consecutive years based on
1991 constant prices, as certified by DOF. The average annual income shall include
the income accruing to the general fund, exclusive of special funds, special
accounts, transfers, and nonrecurring income; and
(2) Population or land area – Population which shall not be less than one hundred
fifty thousand (150,000) inhabitants, as certified by the NSO; or land area which
must be contiguous with an area of at least one hundred (100) square kilometers, as
certified by LMB. The territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not contribute to the
income of the province. The land area requirement shall not apply where the
proposed city is composed of one (1) or more islands. The territorial jurisdiction of a
city sought to be created shall be properly identified by metes and bounds.
The creation of a new city shall not reduce the land area, population, and income of the
original LGU or LGUs at the time of said creation to less than the prescribed minimum
requirements. All expenses incidental to the creation shall be borne by the petitioners.
Provinces:
LGC: SEC. 461. Requisites for Creation. – (a) A province may be created if it has an
average annual income, as certified by the Department of Finance, of not less than Twenty
million pesos (₱20,000,000.00) based on 1991 prices and either of the following requisites:
Josef Elvin Campos
(i) a contiguous territory of at least two thousand (2,000) square kilometers,
as certified by the Lands Management Bureau; or,
(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office:
Provided, That the creation thereof shall not reduce the land area, population, and
(b) The territory need not be contiguous if it comprises two (2) or more islands or is
province.
fund, exclusive of special funds, trust funds, transfers, and non-recurring income.
LGC-IRR: ARTICLE 9. Provinces. – (a) Requisites for creation – A province shall not be
created unless the following requisites on income and either population or land area are
present:
(1) Income – An average annual income of not less than Twenty Million pesos
(₱20,000,000.00) for the immediately preceding two (2) consecutive years based on
1991 constant prices, as certified by DOF. The average annual income shall include
the income accruing to the general fund, exclusive of special funds, special
accounts, transfers, and non-recurring income; and
(2) Population or land area – Population which shall not be less than two hundred
fifty thousand (250,000) inhabitants, as certified by NSO; or land area which must be
contiguous with an area of at least two thousand (2,000) square kilometers, as
certified by LMB. The territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not contribute to the
income of the province. The land area requirement shall not apply where the
proposed province is composed of one (1) or more islands. The territorial jurisdiction
of a province sought to be created shall be properly identified by metes and bounds.
The creation of a new province shall not reduce the land area, population, and income of
the original LGU or LGUs at the time of said creation to less than the prescribed minimum
requirements. All expenses incidental to the creation shall be borne by the petitioners.
It bears scrupulous notice that from the above cited provisions, with respect to the creation
of barangays, land area is not a requisite indicator of viability. However, with respect to the
creation of municipalities, component cities, and provinces, the three (3) indicators of
viability and projected capacity to provide services, i.e., income, population, and land area,
are provided for.
But it must be pointed out that when the local government unit to be created consists of one
(1) or more islands, it is exempt from the land area requirement as expressly provided in
Section 442 and Section 450 of the LGC if the local government unit to be created is a
municipality or a component city, respectively. This exemption is absent in the enumeration
of the requisites for the creation of a province under Section 461 of the LGC, although it is
expressly stated under Article 9(2) of the LGC-IRR.
There appears neither rhyme nor reason why this exemption should apply to cities and
municipalities, but not to provinces. In fact, considering the physical configuration of the
Philippine archipelago, there is a greater likelihood that islands or group of islands would
form part of the land area of a newly-created province than in most cities or municipalities. It
is, therefore, logical to infer that the genuine legislative policy decision was expressed in
Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but was
inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was
expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the
congressional oversight in Section 461 of the LGC – and to reflect the true legislative intent.
It would, then, be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR.
This interpretation finds merit when we consider the basic policy considerations
underpinning the principle of local autonomy.
Section 2 of the LGC, of which paragraph (a) is pertinent to this case, provides—
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government units shall be
Josef Elvin Campos
given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the national government to the local government units.
This declaration of policy is echoed in Article 3(a) of the LGC-IRR 26 and in the Whereas
clauses of Administrative Order No. 270,27 which read—
WHEREAS, Section 25, Article II of the Constitution mandates that the State shall ensure
the autonomy of local governments;
WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as
the Local Government Code of 1991, affirms, among others, that the territorial and political
subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make them more effective
partners in the attainment of national goals;
WHEREAS, Section 533 of the Local Government Code of 1991 requires the President to
convene an Oversight Committee for the purpose of formulating and issuing the appropriate
rules and regulations necessary for the efficient and effective implementation of all the
provisions of the said Code; and
WHEREAS, the Oversight Committee, after due deliberations and consultations with all the
concerned sectors of society and consideration of the operative principles of local autonomy
as provided in the Local Government Code of 1991, has completed the formulation of the
implementing rules and regulations; x x x
Consistent with the declared policy to provide local government units genuine and
meaningful local autonomy, contiguity and minimum land area requirements for prospective
local government units should be liberally construed in order to achieve the desired results.
The strict interpretation adopted by the February 10, 2010 Decision could prove to be
counter-productive, if not outright absurd, awkward, and impractical. Picture an intended
province that consists of several municipalities and component cities which, in themselves,
also consist of islands. The component cities and municipalities which consist of islands are
exempt from the minimum land area requirement, pursuant to Sections 450 and 442,
respectively, of the LGC. Yet, the province would be made to comply with the minimum land
area criterion of 2,000 square kilometers, even if it consists of several islands. This would
mean that Congress has opted to assign a distinctive preference to create a province with
contiguous land area over one composed of islands — and negate the greater imperative of
development of self-reliant communities, rural progress, and the delivery of basic services
to the constituency. This preferential option would prove more difficult and burdensome if
the 2,000-square-kilometer territory of a province is scattered because the islands are
separated by bodies of water, as compared to one with a contiguous land mass.
Moreover, such a very restrictive construction could trench on the equal protection clause,
as it actually defeats the purpose of local autonomy and decentralization as enshrined in the
Constitution. Hence, the land area requirement should be read together with territorial
contiguity.
Another look at the transcript of the deliberations of Congress should prove enlightening:
CHAIRMAN ALFELOR. Can we give time to Congressman Chiongbian, 28 with respect to
his…
CHAIRMAN LINA. Okay.
HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to apprise the
distinguished Senator about the action taken by the House, on House Bill No. 7166. This
was passed about two years ago and has been pending in the Senate for consideration.
This is a bill that I am not the only one involved, including our distinguished Chairman here.
But then we did want to sponsor the bill, being the Chairman then of the Local Government.
So, I took the cudgels for the rest of the Congressmen, who were more or less interested in
the creation of the new provinces, because of the vastness of the areas that were involved.
At any rate, this bill was passed by the House unanimously without any objection. And as I
have said a while ago, that this has been pending in the Senate for the last two years. And
Sen. Pimentel himself was just in South Cotabato and he delivered a speech that he will
support this bill, and he says, that he will incorporate this in the Local Government Code,
which I have in writing from him. I showed you the letter that he wrote, and naturally, we in
the House got hold of the Senate version. It becomes an impossibility for the whole
Philippines to create a new province, and that is quite the concern of the respective
Congressmen.
Now, insofar as the constitutional provision is concerned, there is nothing to stop the mother
province from voting against the bill, if a province is going to be created.
So, we are talking about devolution of powers here. Why is the province not willing to create
another province, when it can be justified. Even Speaker Mitra says, what will happen to
Palawan? We won’t have one million people there, and if you look at Palawan, there will be
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about three or four provinces that will comprise that island. So, the development will be
hampered.
Now, I would like to read into the record the letter of Sen. Pimentel, dated November 2,
1989. This was practically about a year after 7166 was approved by the House, House Bill
7166.
On November 2, 1989, the Senator wrote me:
"Dear Congressman Chiongbian:
We are in receipt of your letter of 17 October. Please be informed that your House No. 7166
was incorporated in the proposed Local Government Code, Senate Bill No. 155, which is
pending for second reading.
Thank you and warm regards.
Very truly yours,"
That is the very context of the letter of the Senator, and we are quite surprised that the
Senate has adopted another position.
So, we would like – because this is a unanimously approved bill in the House, that’s the
only bill that is involving the present Local Government Code that we are practically
considering; and this will be a slap on the House, if we do not approve it, as approved by
the lower House. This can be [an] irritant in the approval of the Conference Committee
Report. And I just want to manifest that insofar as the creation of the province, not only in
my province, but the other provinces. That the mother province will participate in the
plebiscite, they can defeat the province, let’s say, on the basis of the result, the province
cannot be created if they lose in the plebiscite, and I don’t see why, we should put this
stringent conditions to the private people of the devolution that they are seeking.
So, Mr. Senator, I think we should consider the situation seriously, because, this is an
approved version of the House, and I will not be the one to raise up and question the
Conference Committee Report, but the rest of the House that are interested in this bill. And
they have been approaching the Speaker about this. So, the Speaker reminded me to make
sure that it takes the cudgel of the House approved version.
So, that’s all what I can say, Mr. Senator, and I don’t believe that it is not, because it’s the
wish of the House, but because the mother province will participate anyhow, you vote them
down; and that is provided for in the Constitution. As a matter of fact, I have seen the
amendment with regards to the creation of the city to be urbanized, subject to the plebiscite.
And why should we not allow that to happen in the provinces! In other words, we don’t want
the people who wants to create a new province, as if they are left in the devolution of
powers, when they feel that they are far away from civilization.
Now, I am not talking about other provinces, because I am unaware, not aware of their
situation. But the province of South Cotabato has a very unique geographical territorial
conglomerations. One side is in the other side of the Bay, of Sarangani Bay. The capital
town is in the North; while these other municipalities are in the East and in the West. And if
they have to travel from the last town in the eastern part of the province, it is about one
hundred forty kilometers to the capital town. And from the West side, it is the same
distance. And from the North side, it is about one hundred kilometers. So that is the problem
there. And besides, they have enough resources and I feel that, not because I am
interested in the province, I am after their welfare in the future. Who am I to dictate on those
people? I have no interest but then I am looking at the future development of these areas.
As a matter of fact, if I am in politics, it’s incidental; I do not need to be there, but I can
foresee what the creation of a new province will bring to these people. It will bring them
prosperity; it will bring them more income, and it will encourage even foreign investors. Like
the PAP now, they are concentrating in South Cotabato, especially in the City of
General Santos and the neighboring municipalities, and they are quite interested and even
the AID people are asking me, "What is holding the creation of a new province when
practically you need it?" It’s not 20 or 30 kilometers from the capital town; it’s about 140
kilometers. And imagine those people have to travel that far and our road is not like
Metropolitan Manila. That is as far as from here to Tarlac. And there are municipalities there
that are just one municipality is bigger than the province of La Union. They have the
income. Of course, they don’t have the population because that’s a part of the land of
promise and people from Luzon are migrating everyday because they feel that there are
more opportunities here.
So, by creating the new provinces, not only in my case, in the other cases, it will enhance
the development of the Philippines, not because I am interested in my province. Well, as far
as I am concerned, you know, I am in the twilight years of my life to serve and I would like to
serve my people well. No personal or political interest here. I hope the distinguished
Chairman of the Committee will appreciate the House Bill 7166, which the House has
Josef Elvin Campos
already approved because we don’t want them to throw the Conference Committee Report
after we have worked that the house Bill has been, you know, drawn over board and not
even considered by the Senate. And on top of that, we are considering a bill that has not yet
been passed. So I hope the Senator will take that into account.
Thank you for giving me this time to explain.
CHAIRMAN LINA. Thank you very much, Congressman James. We will look into the
legislative history of the Senate version on this matter of creation of provinces. I am sure
there was an amendment. As I said, I’ll look into it. Maybe the House version was
incorporated in toto, but maybe during the discussion, their amendments were introduced
and, therefore, Senator Pimentel could not hold on to the original version and as a result
new criteria were introduced.
But because of the manifestation that you just made, we will definitely, when we reach a
book, Title IV, on the matter of provinces, we will look at it sympathetically from your end so
that the objective that you want [to] achieve can be realized. So we will look at it with
sympathy. We will review our position on the matter, how we arrived at the Senate version
and we will adopt an open mind definitely when we come into it.
CHAIRMAN ALFELOR. Kanino ‘yan?
CHAIRMAN LINA. Book III.
CHAIRMAN ALFELOR. Title?
CHAIRMAN LINA. Title IV.
CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on
economic stimulation of a certain area. Like our case, because I put myself on our province,
our province is quite very big. It’s composed of four (4) congressional districts and I feel it
should be five now. But during the Batasan time, four of us talked and conversed proposing
to divide the province into two.
There are areas then, when since time immemorial, very few governors ever tread on those
areas. That is, maybe you’re acquainted with the Bondoc Peninsula of Quezon, fronting that
is Ragay Gulf. From Ragay there is a long stretch of coastal area. From Albay going to
Ragay, very few governors ever tread [there] before, even today. That area now is infested
with NPA. That is the area of Congressman Andaya.
Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to
these areas. With a big or a large area of a province, a certain administrator or provincial
governor definitely will have no sufficient time. For me, if we really would like to stimulate
growth, I believe that an area where there is physical or geographical impossibilities, where
administrators can penetrate, I think we have to create certain provisions in the law where
maybe we can treat it with special considerations.
Now, we went over the graduate scale of the Philipppine Local Government Data as far as
provinces are concerned. It is very surprising that there are provinces here which only
composed of six municipalities, eight municipalities, seven municipalities. Like in Cagayan,
Tuguegarao, there are six municipalities. Ah, excuse me, Batanes.
CHAIRMAN LINA. Will you look at the case of --- how many municipalities are there in
Batanes province?
CHAIRMAN ALFELOR. Batanes is only six.
CHAIRMAN LINA. Six town. Siquijor?
CHAIRMAN ALFELOR. Siquijor. It is region?
CHAIRMAN LINA. Seven.
CHAIRMAN ALFELOR.L Seven. Anim.
CHAIRMAN LINA. Six also.
CHAIRMAN ALFELOR. Six also.
CHAIRMAN LINA. It seems with a minimum number of towns?
CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand, not even one
congressional district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka
nga ako ngayon.
CHAIRMAN LINA. Camiguin, Camiguin.
CHAIRMAN ALFELOR. That is region? Camiguin has five municipalities, with a population
of 63 thousand. But we do not hold it against the province because maybe that’s one
stimulant where growth can grow, can start. The land area for Camiguin is only 229 square
kilometers. So if we hard fast on requirements of, we set a minimum for every province,
palagay ko we just leave it to legislation, eh. Anyway, the Constitution is very clear that in
case we would like to divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung
maglalagay tayo ng set ng minimum, tila yata mahihirapan tayo, eh. Because what is really
the thrust of the Local Government Code? Growth. To devolve powers in order for the
community to have its own idea how they will stimulate growth in their respective areas.
Josef Elvin Campos
So, in every geographical condition, mayroon sariling id[i]osyncracies eh, we cannot make a
generalization.
CHAIRMAN LINA. Will the creation of a province, carved out of the existing province
because of some geographical id[i]osyncracies, as you called it, stimulate the economic
growth in the area or will substantial aid coming from the national government to a particular
area, say, to a municipality, achieve the same purpose?
CHAIRMAN ALFELOR. Ano tayo dito sa budget. All right, here is a province. Usually,
tinitingnan lang yun, provision eh, hindi na yung composition eh. You are entitled to, say,
20% of the area.
There’s a province of Camarines Sur which have the same share with that of Camiguin and
Siquijor, but Camiguin is composed only of five municipalities; in Siquijor, it’s composed of
six, but the share of Siquijor is the same share with that of the province of Camarines Sur,
having a bigger area, very much bigger.
That is the budget in process.
CHAIRMAN LINA. Well, as I said, we are going to consider this very seriously and even
with sympathy because of the explanation given and we will study this very carefully. 29
The matters raised during the said Bicameral Conference Committee meeting clearly show
the manifest intention of Congress to promote development in the previously
underdeveloped and uninhabited land areas by allowing them to directly share in the
allocation of funds under the national budget. It should be remembered that, under Sections
284 and 285
of the LGC, the IRA is given back to local governments, and the sharing is based on land
area, population, and local revenue.30
Elementary is the principle that, if the literal application of the law results in absurdity,
impossibility, or injustice, then courts may resort to extrinsic aids of statutory construction,
such as the legislative history of the law, 31 or may consider the implementing rules and
regulations and pertinent executive issuances in the nature of executive and/or legislative
construction. Pursuant to this principle, Article 9(2) of the LGC-IRR should be deemed
incorporated in the basic law, the LGC.
It is well to remember that the LGC-IRR was formulated by the Oversight Committee
consisting of members of both the Executive and Legislative departments, pursuant to
Section 53332 of the LGC. As Section 533 provides, the Oversight Committee shall
formulate and issue the appropriate rules and regulations necessary for the efficient and
effective implementation of any and all provisions of this Code, thereby ensuring
compliance with the principles of local autonomy as defined under the Constitution. It was
also mandated by the Constitution that a local government code shall be enacted by
Congress, to wit—
Section 3. The Congress shall enact a local government code which shall provide for a
more responsive and accountable local government structure instituted through a system of
and operation of the local units. (Emphasis supplied.)
These State policies are the very reason for the enactment of the LGC, with the view to
attain decentralization and countryside development. Congress saw that the old LGC, Batas
Pambansa Bilang 337, had to be replaced with a new law, now the LGC of 1991, which is
more dynamic and cognizant of the needs of the Philippines as an archipelagic country.
This accounts for the exemption from the land area requirement of local government units
composed of one or more islands, as expressly stated under Sections 442 and 450 of the
LGC, with respect to the creation of municipalities and cities, but inadvertently omitted from
Section 461 with respect to the creation of provinces. Hence, the void or missing detail was
filled in by the Oversight Committee in the LGC-IRR.
With three (3) members each from both the Senate and the House of Representatives,
particularly the chairpersons of their respective Committees on Local Government, it cannot
be gainsaid that the inclusion by the Oversight Committee of the exemption from the land
area requirement with respect to the creation of provinces consisting of one (1) or more
islands was intended by Congress, but unfortunately not expressly stated in Section 461 of
the LGC, and this intent was echoed through an express provision in the LGC-IRR. To be
sure, the Oversight Committee did not just arbitrarily and whimsically insert such an
exemption in Article 9(2) of the LGC-IRR. The Oversight Committee evidently conducted
due deliberation and consultations with all the concerned sectors of society and considered
the operative principles of local autonomy as provided in the LGC when the IRR was
Josef Elvin Campos
formulated.33 Undoubtedly, this amounts not only to an executive construction, entitled to
great weight and respect from this Court, 34 but to legislative construction as well, especially
with the inclusion of representatives from the four leagues of local government units as
members of the Oversight Committee.
With the formulation of the LGC-IRR, which amounted to both executive and legislative
construction of the LGC, the many details to implement the LGC had already been put in
place, which Congress understood to be impractical and not too urgent to immediately
translate into direct amendments to the LGC. But Congress, recognizing the capacity and
viability of Dinagat to become a full-fledged province, enacted R.A. No. 9355, following the
exemption from the land area requirement, which, with respect to the creation of provinces,
can only be found as an express provision in the LGC-IRR. In effect, pursuant to its plenary
legislative powers, Congress breathed flesh and blood into that exemption in Article 9(2) of
the LGC-IRR and transformed it into law when it enacted R.A. No. 9355 creating the Island
Province of Dinagat.
Further, the bill that eventually became R.A. No. 9355 was filed and favorably voted upon in
both Chambers of Congress. Such acts of both Chambers of Congress definitively show the
clear legislative intent to incorporate into the LGC that exemption from the land area
requirement, with respect to the creation of a province when it consists of one or more
islands, as expressly provided only in the LGC-IRR. Thereby, and by necessity, the LGC
was amended by way of the enactment of R.A. No. 9355.
What is more, the land area, while considered as an indicator of viability of a local
government unit, is not conclusive in showing that Dinagat cannot become a province,
taking into account its average annual income of ₱82,696,433.23 at the time of its creation,
as certified by the Bureau of Local Government Finance, which is four times more than the
minimum requirement of ₱20,000,000.00 for the creation of a province. The delivery of
basic services to its constituents has been proven possible and sustainable. Rather than
looking at the results of the plebiscite and the May 10, 2010 elections as mere fait accompli
circumstances which cannot operate in favor of Dinagat’s existence as a province, they
must be seen from the perspective that Dinagat is ready and capable of becoming a
province. This Court should not be instrumental in stunting such capacity. As we have held
in League of Cities of the Philippines v. Commission on Elections 35 —
Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read
according to its spirit or intent, for what is within the spirit is within the statute although it is
not within its letter, and that which is within the letter but not within the spirit is not within the
statute. Put a bit differently, that which is within the intent of the lawmaker is as much within
the statute as if within the letter, and that which is within the letter of the statute is not within
the statute unless within the intent of the lawmakers. Withal, courts ought not to interpret
and should not accept an interpretation that would defeat the intent of the law and its
legislators.
So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-
equal branch of government, it behooves the Court to have at once one principle in mind:
the presumption of constitutionality of statutes. This presumption finds its roots in the tri-
partite system of government and the corollary separation of powers, which enjoins the
three great departments of the government to accord a becoming courtesy for each other’s
acts, and not to interfere inordinately with the exercise by one of its official functions.
Towards this end, courts ought to reject assaults against the validity of statutes, barring of
course their clear unconstitutionality. To doubt is to sustain, the theory in context being that
the law is the product of earnest studies by Congress to ensure that no constitutional
prescription or concept is infringed. Consequently, before a law duly challenged is nullified,
an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or
argumentative one, must be demonstrated in such a manner as to leave no doubt in the
mind of the Court.
WHEREFORE, the Court resolved to:
1. GRANT the Urgent Motion to Recall Entry of Judgment by movants-intervenors,
dated and filed on October 29, 2010;
2. RECONSIDER and SET ASIDE the July 20, 2010 Resolution, and GRANT the
Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for
Reconsideration of the Resolution dated July 20, 2010;
3. GRANT the Intervenors’ Motion for Reconsideration of the Resolution dated May
12, 2010. The May 12, 2010 Resolution is RECONSIDERED and SET ASIDE. The
provision in Article 9(2) of the Rules and Regulations Implementing the Local
Government Code of 1991 stating, "The land area requirement shall not apply where
the proposed province is composed of one (1) or more islands," is declared VALID.
Josef Elvin Campos
Accordingly, Republic Act No. 9355 (An Act Creating the Province of Dinagat
Islands) is declared as VALID and CONSTITUTIONAL, and the proclamation of the
Province of Dinagat Islands and the election of the officials thereof are declared
VALID; and
4. The petition is DISMISSED.
No pronouncement as to costs.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
Miranda v. Aguirre (G.R. No. 133064, 16 September 1999)

G.R. No. 133064 September 16, 1999
JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H. AFIADO, MARIANO V.
BABARAN and ANDRES R. CABUYADAO, petitioners,
vs.
HON. ALEXANDER AGUIRRE, In his capacity as Executive Secretary; HON. EPIMACO
VELASCO, in his capacity as Secretary of Local Government, HON. SALVADOR
ENRIQUEZ, in his capacity as Secretary of Budget, THE COMMISSION ON AUDIT,
THE COMMISSION ON ELECTIONS, HON. BENJAMIN G. DY, in his capacity as
Governor of Isabela, THE HONORABLE SANGGUNIANG PANLALAWIGAN OF
ISABELA, ATTY. BALTAZAR PICIO, in his capacity as Provincial Administrator, and
MR. ANTONIO CHUA, in his capacity as Provincial Treasurer, respondents, GIORGIDI
B. AGGABAO, intervenor.

PUNO, J.:
This is a petition for a writ of prohibition with prayer for preliminary injunction assailing the
constitutionality of Republic Act No. 8528 converting the city of Santiago, Isabela from an
independent component city to a component city.
On May 5, 1994, Republic Act No. 7720 which converted the municipality of Santiago,
Isabela into an independent component city was signed into law. On July 4, 1994, the
people of Santiago ratified R.A. No. 7720 in a plebiscite. 1
On February 14, 1998, Republic Act No. 8528 was enacted. It amended R.A. No. 7720.
Among others, it changed the status of Santiago from an independent component city to a
component city, viz.:
AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT
NUMBERED 7720 — AN ACT CONVERTING THE MUNICIPALITY OF
SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN
AS THE CITY OF SANTIAGO.
Be it enacted by the Senate and House of Representatives of the Philippines
in Congress assembled:
Sec. 1. Section 2 of Republic Act No. 7720 is hereby amended by deleting
the words "an independent" thereon so that said Section will read as follows:
Sec. 2. The City of Santiago. — The Municipality of Santiago
shall be converted into a component city to be known as the
City of Santiago, hereinafter referred to as the City, which shall
comprise of the present territory of the Municipality of Santiago,
Isabela. The territorial jurisdiction of the City shall be within the
present metes and bounds of the Municipality of Santiago.
Sec. 2. Section 51 of Republic Act No. 7720 is hereby amended deleting the
entire section and in its stead substitute the following:
Sec. 51. Election of Provincial Governor, Vice-Governor,
Sangguniang Panlalawigan Members, and any Elective
Provincial Position for the Province of Isabela. — The voters of
the City of Santiago shall be qualified to vote in the elections of
the Provincial Governor, Vice-Governor, Sangguniang
Panlalawigan members and other elective provincial positions
of the Province of Isabela, and any such qualified voter can be
a candidate for such provincial positions and any elective
provincial office.
Sec. 3. Repealing Clause. — All existing laws or parts thereof inconsistent
with the provisions of this Act are hereby repealed or modified accordingly.
Sec. 4. Effectivity. — This Act shall take effect upon its approval.
Approved.
Josef Elvin Campos
Petitioners assail the constitutionality of R.A. No. 8528. 2 They alleged as ground the lack of
provision in R.A. No. 8528 submitting the law for ratification by the people of Santiago City
in a proper plebiscite. Petitioner Miranda was the mayor of Santiago at the time of the filing
of the petition at bar. Petitioner Afiado is the President of the Liga ng mga Barangay ng
Santiago City. Petitioners Dirige, Cabuyadao and Babaran are residents of Santiago City.
In their Comment, respondent provincial officials of Isabela defended the constitutionality of
R.A. No. 8528. They assailed the standing of petitioners to file the petition at bar. They also
contend that the petition raises a political question over which this Court lacks jurisdiction.
Another Comment was filed by the Solicitor General for the respondent public officials. The
Solicitor General also contends that petitioners are not real parties in interest. More
importantly, it is contended that R.A. No. 8528 merely reclassified Santiago City from an
independent component city to a component city. It allegedly did not involve any "creation,
division, merger, abolition, or substantial alteration of boundaries of local government units,"
hence, a plebiscite of the people of Santiago is unnecessary.
A third Comment similar in tone was submitted by intervenor Giorgidi B. Aggabao, 3 a
member of the provincial board of Isabela. 4 He contended that both the Constitution and
the Local Government Code of 1991 do not require a plebiscite "to approve a law that
merely allowed qualified voters of a city to vote in provincial elections. The rules
implementing the Local Government Code cannot require a plebiscite. He also urged that
petitioners lacked locus standi.
Petitioners filed a Reply to meet the arguments of the respondents and the intervenor. They
defended their standing. They also stressed the changes that would visit the city of
Santiago as a result of its reclassification.
We find merit in the petition.
First. The challenge to the locus standi of petitioners cannot succeed. It is now an ancient
rule that the constitutionality of law can be challenged by one who will sustain a direct injury
as a result of its enforcement. 5 Petitioner Miranda was the mayor of Santiago City when he
filed the present petition in his own right as mayor and not on behalf of the city, hence, he
did not need the consent of the city council of Santiago. It is also indubitable that the
change of status of the city of Santiago from independent component city to a mere
component city will affect his powers as mayor, as will be shown hereafter. The injury that
he would sustain from the enforcement of R.A. No. 8528 is direct and immediate and not a
mere generalized grievance shared with the people of Santiago City. Similarly, the standing
of the other petitioners rests on a firm foundation. They are residents and voters in the city
of Santiago. They have the right to be heard in the conversion of their city thru a plebiscite
to be conducted by the COMELEC. The denial of this right in R.A. No. 8528 gives them
proper standing to strike the law as unconstitutional.1âwphi1.nêt
Second. The plea that this court back off from assuming jurisdiction over the petition at bar
on the ground that it involves a political question has to be brushed aside. This plea has
long lost its appeal especially in light of Section 1 of Article VIII of the 1987 Constitution
which defines judicial power as including "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." To be
sure, the cut between a political and justiciable issue has been made by this Court in many
cases and need no longer mystify us. In Tañada v. Cuenco, 6 we held:
xxx xxx xxx
The term "political question" connotes what it means in ordinary parlance,
namely, a question of policy. It refers "to those questions which under the
Constitution are to be decided by the people in their sovereign capacity; or in
regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.
In Casibang v. Aquino, 7 we defined a justiciable issue as follows:
A purely justiciable issue implies a given right, legally demandable and
enforceable, an act or omission violative of such right, and a remedy granted
and sanctioned by law, for said breach of right.
Clearly, the petition at bar presents a justiciable issue. Petitioners claim that under
Section 10, Article X of the 1987 Constitution they have a right to approve or
disapprove R.A. No. 8528 in a plebiscite before it can be enforced. It ought to be
self-evident that whether or not petitioners have the said right is a legal not a political
question. For whether or not laws passed by Congress comply with the requirements
of the Constitution pose questions that this Court alone can decide. The proposition
Josef Elvin Campos
that this Court is the ultimate arbiter of the meaning and nuances of the Constitution
need not be the subject of a prolix explanation.
Third. The threshold issue is whether R.A. No. 8528 is unconstitutional for its failure to
provide that the conversion of the city of Santiago from an independent component city to a
component city should be submitted to its people in a proper plebiscite. We hold that the
Constitution requires a plebiscite. Section 10, Article X of the 1987 Constitution provides:
No province, city, municipality, or barangay may be created, or divided,
merged, abolished, or its boundary substantially altered except in accordance
with the criteria established in the local government code and subject to
directly affected.
This constitutional requirement is reiterrated in Section 10, Chapter 2 of the Local
Government Code (R.A. No. 7160), thus:
Sec. 10. No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered except in accordance
with the criteria established in the local government code and subject to
directly affected.
The power to create, divide, merge, abolish or substantially alter boundaries of local
government units belongs to Congress. 8 This power is part of the larger power to enact
laws which the Constitution vested in Congress. 9 The exercise of the power must be in
accord with the mandate of the Constitution. In the case at bar, the issue is whether the
downgrading of Santiago City from an independent component city to a mere component
city requires the approval of the people of Santiago City in a plebiscite. The resolution of the
issue depends on whether or not the downgrading falls within the meaning of creation,
division, merger, abolition or substantial alteration of boundaries of municipalities per
Section 10, Article X of the Constitution. A close analysis of the said constitutional provision
will reveal that the creation, division, merger, abolition or substantial alteration of boundaries
of local government units involve a common denominator — material change in the political
and economic rights of the local government units directly affected as well as the people
therein. It is precisely for this reason that the Constitution requires the approval of the
people "in the political units directly affected." It is not difficult to appreciate the rationale of
this constitutional requirement. The 1987 Constitution, more than any of our previous
Constitutions, gave more reality to the sovereignty of our people for it was borne out of the
people power in the 1986 EDSA revolution. Its Section 10, Article X addressed the
undesirable practice in the past whereby local government units were created, abolished,
merged or divided on the basis of the vagaries of politics and not of the welfare of the
people. Thus, the consent of the people of the local government unit directly affected was
required to serve as a checking mechanism to any exercise of legislative power creating,
dividing, abolishing, merging or altering the boundaries of local government units. It is one
instance where the people in their sovereign capacity decide on a matter that affects them
— direct democracy of the people as opposed to democracy thru people's representatives.
This plebiscite requirement is also in accord with the philosophy of the Constitution granting
more autonomy to local government units.
The changes that will result from the downgrading of the city of Santiago from an
independent component city to a component city are many and cannot be characterized as
insubstantial. For one, the independence of the city as a political unit will be diminished. The
city mayor will be placed under the administrative supervision of the provincial governor.
The resolutions and ordinances of the city council of Santiago will have to be reviewed by
the Provincial Board of Isabela. Taxes that will be collected by the city will now have to be
shared with the province. Petitioners pointed out these far reaching changes on the life of
the people of the city of Santiago, viz.: 10
Although RESPONDENTS would like to make it appear that R.A. No. 8528
had "merely re-classified" Santiago City from an independent component city
into a component city, the effect when challenged (sic) the Act were
operational would be, actually, that of conversion. Consequently, there would
be substantial changes in the political culture and administrative
responsibilities of Santiago City, and the Province of Isabela. Santiago City
from an independent component city will revert to the Province of Isabela,
geographically, politically, and administratively. Thus, the territorial land area
of Santiago City will be added to the land area comprising the province of
Isabela. This will be to the benefit or advantage of the Provincial Government
of Isabela on account of the subsequent increase of its share from the
Josef Elvin Campos
internal revenue allotment (IRA) from the National Government (Section 285,
R.A. No. 7160 or the Local Government Code of 1991). The IRA is based on
land area and population of local government units, provinces included.
The nature or kinds, and magnitude of the taxes collected by the City
Government, and which taxes shall accrue solely to the City Government, will
be redefined (Section 151, R.A. No. 7160), and may be shared with the
province such as taxes on sand, gravel and other quarry resources (Section
138, R.A. No. 7160), professional taxes (Section 139, R.A. No. 7160), or
amusement taxes (Section 140, R.A. No. 7160). The Provincial Government
will allocate operating funds for the City. Inarguably, there would be a (sic)
diminished funds for the local operations of the City Government because of
reduced shares of the IRA in accordance with the schedule set forth by
Section 285 of R.A. No. 7160. The City Government's share in the proceeds
in the development and utilization of national wealth shall be diluted since
certain portions shall accrue to the Provincial Government (Section 292, R.A.
No. 7160).
The registered voters of Santiago City will vote for and can be voted as
provincial officials (Section 451 and 452 [c], R.A. No. 7160).
The City Mayor will now be under the administrative supervision of the
Provincial Governor who is tasked by law to ensure that every component city
and municipality within the territorial jurisdiction of the province acts within the
scope of its prescribed powers and functions (Section 29 and 465 (b) (2) (i),
R.A. No. 7160), and to review (Section 30, R.A. No. 7160) all executive
orders submitted by the former (Section 455 (b) (1) (xii), R.A. No. 7160) and
(R)eportorial requirements with respect to the local governance and state of
affairs of the city (Section 455 (b) (1) (xx), R.A. No. 7160). Elective city
officials will also be effectively under the control of the Provincial Governor
(Section 63, R.A. No. 7160). Such will be the great change in the state of the
political autonomy of what is now Santiago City where by virtue of R.A. No.
7720, it is the Office of the President which has supervisory authority over it
as an independent component city (Section 25, R.A. No. 7160; Section 4
(ARTICLE X), 1987 Constitution).
The resolutions and ordinances adopted and approved by the Sangguniang
Panlungsod will be subject to the review of the Sangguniang Panlalawigan
(Sections 56, 468, (a) (1) (i), 468 (a) (2) (vii), and 469 (c) (4), R.A. No. 7160).
Likewise, the decisions in administrative cases by the former could be
appealed and acted upon by the latter (Section 67 R.A. No. 7160).
It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from
a municipality to an independent component city, it required the approval of its
people thru a plebiscite called for the purpose. There is neither rhyme nor reason
why this plebiscite should not be called to determine the will of the people of
Santiago City when R.A. No. 8528 downgrades the status of their city. Indeed, there
is more reason to consult the people when a law substantially diminishes their right.
Rule II, Article 6, paragraph (f) (1) of the Implementing Rules and Regulations of the
Local Government Code is in accord with the Constitution when it provides that:
(f) Plebiscite — (1) no creation, conversion, division, merger, abolition, or
substantial alteration of boundaries of LGUS shall take effect unless
approved by a majority of the votes cast in a plebiscite called for the purpose
in the LGU or LGUs affected. The plebiscite shall be conducted by the
Commission on Elections (COMELEC) within one hundred twenty (120) days
from the effectivity of the law or ordinance prescribing such action, unless
said law or ordinance fixes another date.
x x x x x x x x x
The rules cover all conversions, whether upward or downward in character, so long
as they result in a material change in the local government unit directly affected,
especially a change in the political and economic rights of its people.
A word on the dissenting opinions of our esteemed brethren. Mr. Justice Buena justifies
R.A. No. 8528 on the ground that Congress has the power to amend the charter of Santiago
City. This power of amendment, however, is limited by Section 10, Article X of the
Constitution. Quite clearly, when an amendment of a law involves the creation, merger,
division, abolition or substantial alteration of boundaries of local government units, a
plebiscite in the political units directly affected is mandatory. He also contends that the
amendment merely caused a transition in the status of Santiago as a city. Allegedly, it is a
Josef Elvin Campos
transition because no new city was created nor was a former city dissolved by R.A. No.
8528. As discussed above, the spirit of Section 10, Article X of the Constitution calls for the
people of the local government unit directly affected to vote in a plebiscite whenever there is
a material change in their rights and responsibilities. They may call the downgrading of
Santiago to a component city as a mere transition but they cannot blink away from the fact
that the transition will radically change its physical and political configuration as well as the
rights and responsibilities of its people.
On the other hand, our esteemed colleague, Mr. Justice Mendoza, posits the theory that
"only if the classification involves changes in income, population, and land area of the local
government unit is there a need for such changes to be approved by the people . . . ."
With due respect, such an interpretation runs against the letter and spirit of Section 10,
Article X of the 1987 Constitution which, to repeat, states: "No province, city, municipality, or
barangay may be created, divided, merged, abolished, or its boundary substantially
altered except in accordance with the criteria established in the Local Government
Code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected." It is clear that the Constitution imposes two conditions — first, the
creation, division, merger, abolition or substantial alteration of boundary of a local
government unit must meet the criteria fixed by the Local Government Code on income,
population and land area and second, the law must be approved by the people "by a
majority of the votes cast in a plebiscite in the political units directly affected."
In accord with the Constitution, sections 7, 8, and 9 of the Local Government Code fixed the
said criteria and they involve requirements on income, population and land area. These
requirements, however, are imposed to help assure the economic viability of the local
government unit concerned. They were not imposed to determine the necessity for a
plebiscite of the people. Indeed, the Local Government Code does not state that there will
be no more plebiscite after its requirements on income, population and land area have been
satisfied. On the contrary, section 10, Chapter 2 of the Code provides: "No creation,
division, merger, abolition, or substantial alteration of boundaries of local government
units shall take effect unless approved by a majority of the votes casts in a plebiscite called
for the purpose in the political unit or units directly affected. Said plebiscite shall be
conducted by the COMELEC within one hundred twenty (120) days from the date of the
effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes
another
date. 11 Senator Aquilino Pimentel, the principal author of the Local Government Code of
1991, opines that the plebiscite is absolute and mandatory.12
It cannot be overstressed that the said two requirements of the Constitution have different
purposes. The criteria fixed by the Local Government Code on income, population and land
area are designed to achieve an economic purpose. They are to be based on verified
indicators, hence, section 7, Chapter 2 of the Local Government Code requires that these
"indicators shall be attested by the Department of Finance, the National Statistics Office,
and the Lands Management Bureau of the Department of Environment and Natural
Resources." In contrast, the people's plebiscite is required to achieve a political purpose —
to use the people's voice as a check against the pernicious political practice of
gerrymandering. There is no better check against this excess committed by the political
representatives of the people themselves than the exercise of direct people power. As well-
observed by one commentator, as the creation, division, merger, abolition, or substantial
alteration of boundaries are ". . . basic to local government, it is also imperative that these
acts be done not only by Congress but also be approved by the inhabitants of the locality
concerned. . . . By giving the inhabitants a hand in their approval, the provision will also
eliminate the old practice of gerrymandering and minimize legislative action designed for the
benefit of a few politicians. Hence, it promotes the autonomy of local government units." 13
The records show that the downgrading of Santiago City was opposed by certain segments
of its people. In the debates in Congress, it was noted that at the time R.A. No. 8528 was
proposed, Santiago City has been converted to an independent component city barely two
and a half (2 1/2) years ago and the conversion was approved by a majority of 14,000
votes. Some legislators expressed surprise for the sudden move to downgrade the status of
Santiago City as there had been no significant change in its socio-economic-political status.
The only reason given for the downgrading is to enable the people of the city to aspire for
the leadership of the province. To say the least, the alleged reason is unconvincing for it is
the essence of an independent component city that its people can no longer participate or
be voted for in the election of officials of the province. The people of Santiago City were
aware that they gave up that privilege when they voted to be independent from the province
of Isabela. There was an attempt on the part of the Committee on Local Government to
Josef Elvin Campos
submit the downgrading of Santiago City to its people via a plebiscite. The amendment to
this effect was about to be voted upon when a recess was called. After the recess, the
chairman of the Committee announced the withdrawal of the amendment "after a very
enlightening conversion with the elders of the Body." We quote the debates, viz.: 14
BILL ON SECOND READING
H.B. No. 8729 — City of Santiago
Senator Tatad. Mr. President, I
move that we consider House Bill
No. 8729 as reported out under
Committee Report No. 971.
The President. Is there any
objection? [Silence] there being
none, the motion is approved.
Consideration of House Bill No. 8729 is now in order. With the permission of
the Body, the Secretary will read only the title of the bill without prejudice to
inserting in the Record the whole text thereof.
The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled:
AN ACT AMENDING CERTAIN SECTIONS OF
R.A. NO. 7720 ENTITLED "AN ACT
CONVERTING THE MUNICIPALITY OF
SANTIAGO INTO AN INDEPENDENT
COMPONENT CITY TO BE KNOWN AS THE
CITY OF SANTIAGO
The following is the full text of H.B. No. 8729
Insert
Senator Tatad. Mr. President, for
the sponsorship, I ask that the
distinguished Chairman of the
Committee on Local Government
be recognized.
The President. Senator Sotto is
recognized.
SPONSORSHIP SPEECH OF SENATOR SOTTO
Mr. President. House Bill No. 8729,
which was introduced in the House
by Congressman Antonio M.
Abaya as its principal author, is a
simple measure which merely
seeks to convert the City of
Santiago into a component city of
the Province of Isabela.
The City of Santiago is geographically located within, and is physically an
integral part of the Province of Isabela. As an independent component city,
however, it is completely detached and separate from the said province as a
local political unit. To use the language of the Explanatory Note of the
proposed bill, the City of Santiago is an "island in the provincial milieu.
The residents of the city no longer participate in the elections, nor are they
qualified to run for any elective positions in the Province of Isabela.
The Province of Isabela, on the other hand, is no longer vested with the
power and authority of general supervision over the city and its officials,
which power and authority are now exercised by the Office of the President,
which is very far away from Santiago City.
Being geographically located within the Province of Isabela, the City of
Santiago is affected, one way or the other, by the happenings in the said
province, and is benefited by its progress and development. Hence, the
proposed bill to convert the City of Santiago into a component city of Isabela.
Mr. President, it is my pleasure, therefore, to present for consideration of this
august Body Committee Report No. 971 of the Committee on Local
Government, recommending approval, with our proposed committee
amendment, of House Bill No. 8729.
Thank you, Mr. President.
The President. The Majority
Leader is recognized.
Josef Elvin Campos
moved (sic) that we close the
period of interpellations.
objection? [Silence] There being
none, the period of interpellations
is closed.
Senator Tatad. I move that we now
consider the committee
amendments.
Senator Roco. Mr. President.
The President. What is the
pleasure of Senator Roco?
Senator Roco. Mr. President, may I
ask for a reconsideration of the
ruling on the motion to close the
period of interpellations just to be
able to ask a few questions?
Senator Tatad. May I move for a
reconsideration of my motion, Mr.
President.
objection to the reconsideration of
the closing of the period of
interpellations? [Silence] There
being none, the motion is
approved.
Senator Roco is recognized.
Senator Roco. Will the
distinguished gentlemen yield for
some questions?
Senator Sotto. Willingly, Mr.
President.
Senator Roco. Mr. President,
together with the Chairman of the
Committee on Local Government,
we were with the sponsors when
we approved this bill to make
Santiago a City. That was about
two and a half years ago. At that
time, I remember it was the cry of
the city that it be "independent."
Now we are deleting that word
"independent."
Mr. President, only because I was a co-author and a co-sponsor, for
the Record, I want some explanation on what happened between then and
now that has made us decided that the City of Santiago should cease to be
independent and should now become a component city.
Senator Sotto. Mr. President, the
officials of the province said during
the public hearing that they are no
longer vested with the power and
authority of general supervision
over the city. The power and
authority is now being exercised by
the Office of the President and it is
quite far from the City of Santiago.
In the public hearing, we also gathered that there is a clamor from some
sectors that they want to participate in the provincial elections.
Senator Roco. Mr. President, I did
not mean to delay this. I did want it
on record, however. I think there
was a majority of 14,000 who
Josef Elvin Campos
approved the charter, and maybe
we owe it to those who voted for
that charter some degree of
respect. But if there has been a
change of political will, there has
been a change of political will, then
so be it.
Thank you, Mr. President.
Senator Sotto. Mr. President, to be
very frank about it, that was a very
important point raised by Senator
Roco, and I will have to place it on
the Record of the Senate that the
reason why we are proposing a
committee amendment is that,
originally, there was an objection
on the part of the local officials and
those who oppose it by
incorporating a plebiscite in this
bill. That was the solution.
Because there were some sectors
in the City of Santiago who were
opposing the reclassification or
reconversion of the city into a
component city.
Senator Roco. All I wanted to say,
Mr. President — because the two
of us had special pictures (sic) in
the city — is that I thought it should
be put on record that we have
supported originally the proposal to
make it an independent city. But
now if it is their request, then, on
the manifestation of the Chairman,
let it be so.
Thank you.
Senator Drilon. Mr. President.
Senator Drilon. Will the gentleman
yield for a few questions, Mr.
President.
Senator Sotto. Yes, Mr. President.
Senator Drilon. Mr. President,
further to the interpellation of our
good friend, the Senator from
Bicol, on the matter of the opinion
of the citizens of Santiago City,
there is a resolution passed by the
Sanggunian on January 30, 1997
opposing the conversion of
Santiago from an independent city.
This opposition was placed on records during the committee hearings. And
that is the reason why, as mentioned by the good sponsor, one of the
amendments is that a plebiscite be conducted before the law takes effect.
The question I would like to raise — and I would like to recall the statement of
our Minority Leader — is that, at this time we should not be passing it for a
particular politician.
In this particular case, it is obvious that this bill is being passed in order that
the additional territory be added to the election of the provincial officials of the
province of Isabela.
Now, is this for the benefit of any particular politician, Mr. President.
Senator Sotto. If it is, I am not
aware of it, Mr. President.
Senator Alvarez. Mr. President.
Josef Elvin Campos
The President. With the permission
of the two gentlemen on the Floor,
Senator Alvarez is recognized.
Senator Alvarez. As a born inbred
citizen of this city, Mr. President,
may I share some information.
Mr. President, if we open up the election of the city to the provincial
leadership, it will not be to the benefit of the provincial leadership, because
the provincial leadership will then campaign in a bigger territory.
As a matter of fact, the ones who will benefit from this are the citizens of
Santiago who will now be enfranchised in the provincial electoral process,
and whose children will have the opportunity to grow into provincial
leadership. This is one of the prime reasons why this amendment is being put
forward.
While it is true that there may have been a resolution by the city council,
those who signed the resolution were not the whole of the council. This bill
was sponsored by the congressman of that district who represents a
constituency, the voice of the district.
I think, Mr. President, in considering which interest is paramount, whose voice
must be heard, and if we have to fathom the interest of the people, the law
which has been crafted here in accordance with the rules should be given
account, as we do give account to many of the legislations coming from the
House on local issues.
Senator Drilon. Mr. President, the
reason why I am raising this
question is that, as Senator Roco
said, just two and-a-half years ago
we passed a bill which indeed
disenfranchized — if we want to
use that phrase — the citizens of
the City of Santiago in the matter
of the provincial election. Two-and-
a-half years after, we are changing
the rule.
In the original charter, the citizens of the City of Santiago participated in a
plebiscite in order to approve the conversion of the city into an independent
city. I believe that the only way to resolve this issue raised by Senator Roco is
again to subject this issue to another plebiscite as part of the provision of this
proposed bill and as will be proposed by the Committee Chairman as an
amendment.
Thank you very much, Mr. President.
Senator Alvarez. Mr. President, the
Constitution does not require that
the change from an independent to
a component city be subjected to a
plebiscite.
Secs. 10, 11, 12 of Article X of the 1987 Constitution provides as follows:
Sec. 10. No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria
established in the local government code and subject to
approval by a majority of the votes cast in a plebiscite in the
political units directly affected.
This change from an independent city into a component city is none of those
enumerated. So the proposal coming from the House is in adherence to this
constitutional mandate which does not require a plebiscite.
Senator Sotto. Mr. President, the
key word here is "conversion". The
word "conversion" appears in that
provision wherein we must call a
plebiscite. During the public
hearing, the representative of
Congressman Abaya was insisting
Josef Elvin Campos
that this is not a conversion; this is
merely a reclassification. But it is
clear in the bill.
We are amending a bill that converts, and we are converting it into a
component city. That is how the members of the committee felt. That is why
we have proposed an amendment to this, and this is to incorporate a
plebiscite in as much as there is no provision on incorporating a plebiscite.
Because we would like not only to give the other people of Santiago a chance
or be enfranchised as far as the leadership of the province is concerned, but
also we will give a chance to those who are opposing it. To them, this is the
best compromise. Let the people decide, instead of the political leaders of
Isabela deciding for them.
Senator Tatad. Mr. President.
Senator Tatad. At this point, Mr.
President, I think we can move to
close the period of interpellations.
Senator Tatad. I move that we now
consider the committee
amendments, Mr. President.
none the motion is approved.
Senator Sotto. On page 2, after
line 13, insert a new Section 3, as
follows:
Sec 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS HEREBY AMENDED
BY DELETING THE ENTIRE SECTION AND IN ITS STEAD SUBSTITUTE
THE FOLLOWING:
Sec. 49. PLEBISCITE. — THE CONVERSION OF THE CITY
OF SANTIAGO INTO A COMPONENT CITY OF THE
PROVINCE OF ISABELA SHALL TAKE EFFECT UPON THE
RETIFICATION OF THIS ACT BY A MAJORITY OF THE
PEOPLE OF SAID CITY IN A PLEBISCITE WHICH SHALL BE
HELD FOR THE PURPOSE WITHIN SIXTY (60) DAYS FROM
THE APPROVAL OF THIS ACT. THE COMMISSION ON
ELECTIONS SHALL CONDUCT AND SUPERVISE SUCH
PLEBISCITE.
objection?
Senator Enrile. Mr. President.
The President. Senator Enrile is
recognized.
Senator Enrile. I object to this
committee amendment, Mr.
President.
SUSPENSION OF SESSION
Senator Tatad. May I ask for a
one-minute suspension of the
session.
The President. The session is
suspended for a few minutes if
there is no objection. [There was
none].
It was 7:54 p.m.
RESUMPTION OF SESSION
At 7:57 p.m., the session was resumed.
The President. The session is
resumed.
Josef Elvin Campos
Senator Sotto is recognized.
Senator Sotto. Mr. President, after
a very enlightening conversation
with the elders of the Body, I
withdraw my amendment.
The President. The amendment is
withdrawn.
Senator Maceda. Mr. President.
The President. Senator Maceda is
recognized.
Senator Maceda. We wish to thank
the sponsor for the withdrawal of
the amendment.
Mr. President, with due respect to the Senator from Isabela — I am no great
fan of the Senator from Isabela — but it so happens that this is a local bill
affecting not only his province but his own city where he is a resident and
registered voter.
So, unless the issue is really a matter of life and death and of national
importance, senatorial courtesy demands that we, as much as possible,
accommodate the request of the Senator from Isabela as we have done on
matters affecting the district of other senators. I need not remind them.
Thank you anyway, Mr. President.
Senator Alvarez. Mr. President.
The President. Senator Alvarez is
recognized.
Senator Alvarez. Mr. President,
may I express my deepest
appreciation for the statement of
the gentleman from Ilocos and
Laguna. Whatever he may have
said, the feeling is not mutual. At
least for now, I have suddenly
become his great fan for the
evening.
May I put on record, Mr. President, that I campaigned against the cityhood of
Santiago not because I do not want it to be a city but because it had
disenfranchised the young men of my city from aspiring for the leadership of
the province. The town is the gem of the province. How could we extricate the
town from the province?
But I would like to thank the gentleman, Mr. President, and also the Chairman
of the Committee.
Senator Tatad. Mr. President.
Senator Tatad. There being no
committee amendments, I move
that the period of committee
amendments be closed.
The President. Shall we amend the
title of this bill by removing the
word "independent" preceding
"component city"?
Senator Sotto. No, Mr. President.
We are merely citing the title. The
main title of this House Bill No.
8729 is "An Act Amending Certain
Sections of Republic Act 7720".
The title is the title of Republic Act
7720. So, I do not think that we
should amend that anymore.
The President. What is the pending
motion? Will the gentleman kindly
state the motion?
Josef Elvin Campos
Senator Tatad. I move that we
close the period of committee
amendments.
Senator Tatad. Unless there are
any individual amendments, I
move that we close the period of
individual amendments.
none, the period of individual
amendments is closed.
APPROVAL OF H.B. NO. 8729 ON SECOND READING
move that we vote on Second
Reading on House Bill No. 8729.
none, we shall now vote on
Second Reading on House Bill No.
8729.
As many as are in favor of the bill, say aye.
Several Members. Aye.
As many as are against the bill, say nay. [Silences]
House Bill No. 8279 is approved on Second Reading.
The debates cannot but raise some quizzical eyebrows on the real purpose for the
downgrading of the city of Santiago. There is all the reason to listen to the voice of
the people of the city via a plebiscite.
In the case of Tan, et al. v. COMELEC,15 BP 885 was enacted partitioning the province of
Negros Occidental without consulting its people in a plebiscite. In his concurring opinion
striking down the law as unconstitutional, Chief Justice Teehankee cited the illicit political
purpose behind its enactment, viz:
The scenario, as petitioners urgently asserted, was "to have the creation of
the new Province a fait accompli by the time elections are held on February
7, 1986. The transparent purpose is unmistakably so that the new Governor
and other officials shall by then have been installed in office, ready to function
for purposes of the election for President and Vice-President." Thus, the
petitioners reported after the event: "With indecent haste, the plebiscite was
held; Negros del Norte was set up and proclaimed by President Marcos as in
existence; a new set of government officials headed by Governor Armando
Gustilo was appointed; and, by the time the elections were held on February
7, 1986, the political machinery was in place to deliver the "solid North" to ex-
President Marcos. The rest is history. What happened in Negros del Norte
during the elections — the unashamed use of naked power and resources —
contributed in no small way to arousing "people's power" and steel the
ordinary citizen to perform deeds of courage and patriotism that makes one
proud to be a Filipino today.
The challenged Act is manifestly void and unconstitutional. Consequently, all
the implementing acts complained of, viz., the plebiscite, the proclamation of
a new province of Negros del Norte and the appointment of its officials are
equally void. The limited holding of the plebiscite only in the areas of the
proposed new province (as provided by Section 4 of the Act) to the exclusion
of the voters of the remaining areas of the integral province of Negros
Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the
Municipalities of Las Castellana, Isabela, Moises Padilla, Pontevedra,
Hinigaran, Himamaylan, Kabankalan, Murcia, Valladoid, San Enrique, Ilog,
Cauayan, Hinoba-an and Sipalay and Candoni), grossly contravenes and
disregards the mandate of Article XI, section 3 of the then prevailing 1973
Constitution that no province may be created or divided or its boundary
substantially altered without "the approval of a majority of the votes in a
plebiscite in the unit or units affected." It is plain that all the cities and
Josef Elvin Campos
municipalities of the province of Negros Occidental, not merely those of the
proposed new province, comprise the units affected. It follows that the voters
of the whole and entire province of Negros Occidental have to participate and
give their approval in the plebiscite, because the whole is affected by its
proposed division and substantial alteration of its boundary. To limit the
plebiscite to only the voters of the areas to be partitioned and seceded from
the province is as absurd and illogical as allowing only the secessionists to
vote for the secession that they demanded against the wishes of the majority
and to nullify the basic principle of majority rule.
Mr. Justice Mendoza and Mr. Justice Buena also cite two instances when allegedly
independent component cities were downgraded into component cities without need of a
plebiscite. They cite the City of Oroquieta, Misamis Occidental, 16 and the City of San
Carlos, Pangasinan 17 whose charters were amended to allow their people to vote and be
voted upon in the election of officials of the province to which their city belongs without
submitting the amendment to a plebiscite. With due respect, the cities of Oroquieta and San
Carlos are not similarly situated as the city of Santiago. The said two cities then were not
independent component cities unlike the city of Santiago. The two cities were chartered but
were not independent component cities for both were not highly urbanized cities which
alone were considered independent cities at that time. Thus, when the case of San Carlos
City was under consideration by the Senate, Senator Pimentel explained: 18
. . . Senator Pimentel. The bill under consideration, Mr. President, merely
empowers the voters of San Carlos to vote in the elections of provincial
officials. There is no intention whatsoever to downgrade the status of the City
of San Carlos and there is no showing whatsoever that the enactment of this
bill will, in any way, diminish the powers and prerogatives already enjoyed by
the City of San Carlos. In fact, the City of San Carlos as of now, is a
component city. It is not a highly urbanized city. Therefore, this bill merely, as
we said earlier, grants the voters of the city, the power to vote in provincial
elections, without in any way changing the character of its being a component
city. It is for this reason that I vote in favor of this bill.
It was Senator Pimentel who also sponsored the bill 19 allowing qualified voters of the
city of Oroquieta to vote in provincial elections of the province of Misamis Occidental.
In his sponsorship speech, he explained that the right to vote being given to the
people of Oroquieta City was consistent with its status as a component
city. 20 Indeed, during the debates, former Senator Neptali Gonzales pointed out the
need to remedy the anomalous situation then obtaining ". . . where voters of one
component city cannot vote simply because their charters so provide." 21 Thus,
Congress amended other charters of component cities prohibiting their people from
voting in provincial elections.
IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is declared
unconstitutional and the writ of prohibition is hereby issued commanding the respondents to
desist from implementing said law.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Panganiban, Pardo, Gonzaga-Reyes and
Ynares-Santiago, JJ., concur.
Vitug, J., pls. see separate opinion.
Mendoza, J., please see dissent.
Quisumbing and Purisima, JJ., we join Justice Mendoza in his dissent.
Buena, J., please see dissent.
Separate Opinions
VITUG, J., separate opinion;
I share the opinion of the majority of my colleagues that, for the reasons expressed in
the ponencia, a plebiscite is essential in order to render effective the conversion of the City
of Santiago, Isabela, from an independent to a component city. I would not go to the extent,
however, of declaring Republic Act No. 7720 unconstitutional; instead, with due respect, I
take the view that a plebiscite can be held conformably with the provisions of the Local
Government Code. I do not see, in this instance, a serious incompatibility in having
Republic Act No. 7720 stand along with the Local Government Code.
MENDOZA, J., dissenting opinion;
The issue in this case is whether the conversion of the City of Santiago in Isabela province
from an independent component city to a component city constitutes the creation, division,
merger, abolition, or substantial alteration of the boundary of a city within the contemplation
of Art. X, §10 of the Constitution so as to require the approval of the people in a plebiscite.
Josef Elvin Campos
The Court, in declaring R.A. No. 8528 unconstitutional for lack of provision for a plebiscite,
does not say that the reclassification of Santiago City as an ordinary component city
constitutes creation, division, merger, abolition, or substantial alteration of boundary.
Nonetheless, the Court today holds that because the reclassification of the city would result
in a "material change in the political and economic rights of the local government units
directly affected as well as the people therein," the approval of the law in a plebiscite is
required.1âwphi1.nêt
With all due respect I submit that not every change — however "material" and far-reaching
— in the classification of a local government unit requires popular approval. Only if the
reclassification involves changes in income, population, and land area of the local
government unit is there a need for such changes to be approved by the people, for then
there would be a creation, division, merger, abolition, or substantial alteration of the
boundary of a local government unit, as the case may be, within the meaning of Art. X, §10
of the Constitution. Thus, the Local Government Code (R.A. No. 7160), in implementing the
constitutional provision in question, states:
Sec. 7. Creation and Conversion. — As a general rule, the creation of a local
government unit or its conversion from one level to another level shall be
based on verifiable indicators or viability and projected capacity to provide
services, to wit:
(a) Income. — It must be sufficient, based on acceptable standards, to
provide for all essential government facilities and services and special
functions commensurate with the size of its population, as expected of the
local government unit concerned;
(b) Population. — It shall be determined as the total number of inhabitants
within the territorial jurisdiction of the local government unit concerned; and
(c) Land Area. — It must be contiguous, unless it comprises two (2) or more
islands or is separated by a local government unit independent of the others;
properly identified by metes and bounds with technical descriptions; and
sufficient to provide for such basic services and facilities to meet the
requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the
Department of Finance (DOF), the National Statistics Office (NSO), and the
Lands Management Bureau (LMB) of the Department of Environment and
Natural Resources (DENR).
Sec. 8. Division and Merger. — Division and merger of existing local
government units shall comply with the same requirements herein prescribed
for their creation: Provided, however, That such division shall not reduce the
income, population, or land area of the local government unit or units
concerned to less than the minimum requirements prescribed in this
Code: Provided, further, That the income classification of the original local
government unit or units shall not fall below its current income classification
prior to such division.
The income classification of local government units shall be updated within
six (6) months from the effectivity of this Code to reflect the changes in their
financial position resulting from the increased revenues as provided herein.
Sec. 9. Abolition of Local Government Units. — A local government unit may
be abolished when its income, population, or land area has been irreversibly
reduced to less than the minimum standards prescribed for its creation under
Book III of this Code, as certified by the national agencies mentioned in
Section 7 hereof to Congress or to the sanggunian concerned, as the case
may be.
The law or ordinance abolishing a local government unit shall specify the
province, city, municipality, or barangay with which the local government unit
sought to be abolished will be incorporated or merged.
The conversion from an independent component city to a component city involves no such
changes in income, population, or land area. There may be changes in the voting rights of
the residents of the city, the supervision of the city's administration, and the city's share in
the local taxes, as petitioners point out, but such changes do not amount to the creation,
division, merger, abolition, or substantial alteration of the boundary of a local government
unit so as to require a plebiscite for their approval. An independent component city and an
ordinary component city are both component cities, as distinguished from highly urbanized
cities.1 The only difference between them is that the charters of the independent component
cities prohibit their voters from voting for provincial elective officials and such cities are
Josef Elvin Campos
independent of the provinces in which they are located. 2 Thus, the Local Government Code
provides:
Sec. 450. Requisites for Creation. — (a) A municipality or a cluster of
barangays may be converted into a component city if it has an average
annual income, as certified by the Department of Finance, of at least Twenty
million pesos (P20,000,000.00) for the last two (2) consecutive years based
on 1991 constant prices, and if it has either of the following requisites:
inhabitants, as certified by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said creation
to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly
identified by metes and bounds. The requirement on land area shall not apply
where the city proposed to be created is composed of one (1) or more
islands. The territory need not be contiguous if it comprises two (2) or more
islands.
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and nonrecurring income.
Sec. 451. Cities, Classified. — A city may either be component or highly
urbanized: Provided, however, That the criteria established in this Code shall
not affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose charters
prohibit their voters from voting for provincial elective officials. Independent
component cities shall be independent of the province.
Sec. 452. Highly Urbanized Cities. — (a) Cities with a minimum population of
two hundred thousand (200,000.00) inhabitants, as certified by the National
Statistics Office, and with the latest annual income of at least Fifty Million
Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the
city treasurer; shall be classified as highly urbanized cities.
(b) Cities which do not meet the above requirements shall be considered
component cities of the province in which they are geographically located. If a
component city is located within the boundaries of two (2) or more provinces,
such city shall be considered a component of the province of which it used to
be a municipality.
(c) Qualified voters of highly urbanized cities shall remain excluded from
voting for elective provincial officials.
Unless otherwise provided in the Constitution or this Code, qualified voters of
independent component cities shall be governed by their respective charters,
as amended, on the participation of voters in provincial elections.
Qualified voters of cities who acquired the right to vote for elective provincial
officials prior to the classification of said cities as highly urbanized after the
ratification of the Constitution and before the effectivity of this Code, shall
continue to exercise such right.
The Court says that the changes resulting from the reclassification of Santiago City as an
ordinary component city "cannot be considered insubstantial." For one, it is said, its
independence will be diminished because the city mayor will be placed under the
administrative supervision of the provincial governor. For another, the resolutions and
ordinances of the city council will have to be approved by the provincial board of Isabela.
The fact is that whether the City of Santiago is an independent component city or an
ordinary component city, it is subject to administrative supervision, with the only difference
that, as an independent component city, it is under the direct supervision of the President of
the Philippines, whereas, as an ordinary component city, it will be subject to the supervision
of the President through the province. 3 That is hardly a distinction. For the fact is that under
the Constitution, the President of the Philippines exercises general supervision over all local
governments. 4
Nor does it matter that ordinances passed by the city councils of component cities are
subject to review (not approval as the Court says) by the provincial boards for the purpose
of determining whether the ordinances are within the powers of the city councils to
enact. 5 For that matter, ordinances passed by the city councils of independent component
Josef Elvin Campos
cities are likewise subject to review, although by the Office of the President. 6 The reason
for this is to be found in Art. X, §4 of the Constitution which provides:
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.
In any case, these are not important differences which determine whether the law effecting
them should be approved in a plebiscite. The defining characteristics of a local government
unit are its income, population, and local area, as §§450 and 452 of the LGC provide. These
are referred to in §7 of the LGC and its Implementing Rules as the "verifiable indicators of
viability and projected capacity to provide services." Tested by these standards, there is no
change in the City of Santiago requiring the approval of the people in a plebiscite.
The majority states: "It is markworthy that when R.A. No. 7720 upgraded the status of
Santiago City from a municipality to an independent component city, it required the approval
of its People thru a plebiscite called for the purpose. There is neither rhyme nor reason why
this plebiscite should not be called to determine the will of the people of Santiago City when
R.A. No. 8525 downgrades the status of their city." The conversion of the then Municipality
of Santiago in Isabela Province by R.A. No. 7720 was an act of creation. It was based on
the municipality's satisfying the requisites for the creation of a city as provided in the LGC,
to wit:
Sec. 450. Requisites for Creation. — (a) A municipality or a cluster of
annual income, as certified by the Department of Finance, of a least Twenty
inhabitants, as certified by the National Statistics Office;
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said creation
to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly
identified by metes and bounds. The requirement on land area shall not apply
where the city proposed to be created is composed of one (1) or more
islands. The territory need not be contiguous if it comprises two (2) or more
islands.
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and nonrecurring income.
As thus indicated these requisites are based on the "verifiable indicators" of income,
population, and land area and, therefore, the conversion of what was once a municipality
into a city needed approval in a plebiscite. But the conversion of Santiago City from an
independent component city into a component city involves no more than a change in the
right of the people (i.e., the registered voters of the city) to vote for provincial elective
officials.
If an analogy is needed, it is to the reversion of a component city — whether independent or
ordinary — to the status of a municipality. For then the city is actually abolished and
abolition, as stated in the Art. X, §10 of the Constitution, must be approved by the majority
of the votes cast in a plebiscite. Stated otherwise, when a municipality is converted into a
city, a city is created, and when the city is reverted into a municipality, the city is abolished.
Both acts of creation and abolition require the approval of the people in a plebiscite called
for the purpose. But when an independent component city is converted into a component
city, it is not created into another form, it is not divided, it is not merged with another unit of
local government, it is not abolished, much less is its boundary substantially altered.
Indeed, this is not the first time that an independent component city is converted into a
component city without a plebiscite. The City of Oroquieta, created as an independent
component city in 1969 by R.A. No. 5518, was converted into a component city in 1989 by
R.A. No. 6726, while the City of San Carlos, created as an independent component city in
1965 by R.A. No. 4187, was converted into a component city by R.A. No. 6843 in 1990. In
both cases, the conversion was made without submitting the matter to a plebiscite.
There is, therefore, no reason for requiring that the reclassification of Santiago City as a
component city must be approved by the majority of the votes cast in a plebiscite and for
Josef Elvin Campos
holding that, because R.A. No. 8528 contains no provision for such plebiscite, it is
unconstitutional.
It is easy to sympathize with calls for plebiscites as an exercise of direct democracy by the
people. But, although the Constitution declares that "Sovereignty resides in the people and
all government authority emanates from them," it also provides that we are a "republican
State." 7 It is thus a representative form of government that we have. With few exceptions,
we have vested the legislative power in the Congress of the Philippines. 8 This means that
when an act of the people's representatives assembled in Congress is duly passed and
approved by the President in the manner prescribed in the Constitution, the act becomes a
law 9 without the need of approval or ratification by the people in order to be effective. 10
This is the theory of representative government. Such a government is no less democratic
because it is indirect. In some ways it is better than direct government given the complexity
of modern society, let alone the volatility of voters and their susceptibility to manipulation. In
this age of mass communication there is less reason to distrust the judgment of the people's
representatives in Congress on matters such as this and, therefore, no reason to require the
people to manifest their sovereign will, except where this is expressly required by the
Constitution.
For the foregoing reasons, I vote to dismiss the petition in this case.
BUENA, J., dissenting opinion;
With all due respect to my esteemed colleague, Mr. Justice Reynato S. Puno, whose well-
written ponencia expresses his opinion with clarity, I regret that I am unable to agree that
Republic Act No. 8528 should be declared as unconstitutional for the following reasons:
1. Section 10, Article X of the 1987 Constitution provides that —
Sec. 10, Article X. — No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the Local Government
Code and subject to approval by a majority of the votes cast in a plebiscite in
the political units directly affected.
Sec. 10 Chapter 2 of the Local Government Code (R.A. No. 7160) provides:
Sec. 10, Chapter 2. — Plebiscite Requirement. No creation, division, merger,
abolition, or substantial alteration of boundaries of local government units
shall take effect unless approved by a majority of the votes cast in a plebiscite
called for the purpose in the political unit or units directly affected. Said
plebiscite shall be conducted by the Commission on Elections (COMELEC)
within one hundred twenty (120) days from the date of effectivity of the law or
ordinance effecting such action, unless said law or ordinance fixes another
date.
In short, conversion does not appear in the 1987 Constitution nor in the Section 10, Chapter
2 of the Local Government Code. Surprisingly, Rule II, Article 6, paragraph (f) (1) of the
Implementing Rules of the Local Government Code included conversion in the enumeration
of the modes of changing the status of local government units, thus:
(f) Plebiscite. — (1) No creation, conversion, division, merger, abolition, or
substantial alteration of boundaries of LGUs shall take effect unless approved
by a majority of the votes cast in a plebiscite called for the purpose in the
LGU or LGUs affected. The plebiscite shall be conducted by the Commission
on Elections (COMELEC) within one hundred twenty (120) days from the
effectivity of the law or ordinance prescribing such action, unless said law or
ordinance fixes another date.
xxx xxx xxx (emphasis supplied)
Other than that, the Local Government Code uses the term "conversion" only in the
following instances: (1) Section 7, which provides that "[a]s a general rule, the creation of a
local government unit or its conversion from one level to another shall be based on
verifiable indicators of viability and projected capacity to provide services, to wit: . . . . . .;"
(2) Section 450, which provides for the requisites for the "conversion" of a municipality or a
cluster of barangays into a component city; and (3) Section 462, which involves the
"conversion" of existing sub-provinces into regular provinces.
Senator Aquilino Pimentel, Jr. defines 1 — "conversion," as "the elevation of an LGU from
one level to another, like converting a municipality to a city or a component city to a highly
urbanized one or the raising of the classification of one municipality, city or province from a
fourth class category to third, second or first." It is my humble opinion therefore that the
requirement of a plebiscite does not apply to the case at bar which does not involve
the upgrading or elevation of Santiago City but a downgrading thereof.
Josef Elvin Campos
2. I am not convinced that a mere Rule and Regulation intended to implement the Local
Government Code can expand the terms and provisions clearly expressed in the basic law
to be implemented. As aptly contended by the Solicitor General in his Comment on the
petition viz.:
It is a settled jurisprudence that the power of administrative agencies to
promulgate rules and regulations must be in strict compliance with the
legislative enactment. Thus, in Tayug Rural Bank vs. Central Bank of the
Philippines (146 SCRA 129-30), this Honorable Court ruled that in the case of
discrepancy between the basic law and a rule or regulation to implement said
law, the basic law prevails as said rule or regulation can not go beyond the
terms and provisions of the basic law. Neither can such rules and regulations
extend or expand the letter and spirit of the law they seek to implement.
(Iglesia ni Kristo vs. Court of Appeals, 259 SCRA
529) 2
As a matter of fact, Mr. Justice Puno, in his ponencia in the above cited case of Iglesia ni
Kristo, opined that "(T)his rule is void for it runs smack against the hoary doctrine that
administrative rules and regulations cannot expand the letter and spirit of the law they seek
to enforce. 3
3. The proceedings in the Senate show that the Committee on Local Government, to which
H.B. No. 8729 was referred, reported back to the Senate with the recommendation that it be
approved with the following amendment:
Sec. 3. Section 49 of Republic Act No. 7720 is hereby amended by deleting
the entire section and in its stead substitute the following:
Sec. 49. PLEBISCITE. — THE CONVERSION OF THE CITY
OF SANTIAGO INTO A COMPONENT CITY OF THE
PROVINCE OF ISABELA SHALL TAKE EFFECT UPON THE
RATIFICATION OF THIS ACT BY A MAJORITY OF THE
PEOPLE OF SAID CITY IN A PLEBISCITE WHICH SHALL BE
HELD FOR THE PURPOSE WITHIN (60) DAYS FROM THE
APPROVAL OF THIS ACT. THE COMMISSION ON
ELECTIONS SHALL CONDUCT AND SUPERVISE SUCH
PLEBISCITE.
However, after the deliberations in the Senate, the Committee on Local Government
decided to withdraw the foregoing proposed amendment. Hence, on February 6, 1998, the
Republic Act No. 8528, the constitutionality of which is challenged by the petitioners, was
approved.
Be that as it may, may this Court properly require a plebiscite for the validity of said law
when Congress itself, which had been given the opportunity to include such a requirement,
decided against it? Are we not supplanting our judgment over that of Congress, a co-equal
branch of government entrusted by the Constitution to enact laws? I respectfully submit that
we may not do so without disturbing the balance of power as apportioned and delineated by
the Constitution.
4. I likewise submit that we must consider the ramifications of a declaration of
unconstitutionality of Republic Act No. 8528 on Republic Act No. 6726 (1989) and Republic
Act No. 6843 (1990), respectively allowing the voters of the City of Oroquieta (Misamis
Oriental) and San Carlos City (Pangasinan) to vote and be voted for any of the respective
provincial offices, in effect downgrading them from independent component cities to
component cities. The resulting confusion on the political structures of the local government
units involved would surely be disastrous to the order and stability of these cities.
5. Finally, in a situation where the supposed breach of the constitution is doubtful, equivocal
and, at best, based on argumentative implications, I believe that, as we have ruled in a
plethora of cases 4, every law has in its favor, the presumption of constitutionality and in
case of doubt, the Court must exert every effort to prevent the invalidation of the law and
the nullification of the will of the legislature that enacted it and the executive that approved
it.1âwphi1.nêt
I therefore vote to dismiss the petition.
Samson v. Aguirre (G.R. No. 133076, 22 September 1999)

G.R. No. 133076 September 22, 1999
MOISES S. SAMSON, petitioner,
vs.
HON. ALEXANDER AGUIRRE, in his capacity as the Executive Secretary,
COMMISSION ON ELECTIONS, and the DEPARTMENT OF BUDGET, respondents.
Josef Elvin Campos
QUISUMBING, J.:
On February 23, 1998, President Fidel V. Ramos signed into law Republic Act No. 8535,
creating the City of Novaliches out of 15 barangays of Quezon City. Petitioner Moises S.
Samson, incumbent councilor of the first district of Quezon City, is now before the Court
challenging the constitutionality of Republic Act No. 8535.
Petitioner also seeks to enjoin the Executive Secretary from ordering the implementation of
R.A. 8535, the COMELEC from holding a plebiscite for the creation of the City of
Novaliches, and the Department of Budget and Management from disbursing funds for said
plebiscite. Lastly, he prays for the issuance of a preliminary injunction or temporary
restraining order, through a motion we duly noted.
Petitioner bases his petition on the following grounds:
a) R.A. No. 8535 failed to conform to the criteria established by the Local
Government Code particularly, Sections 7, 11(a) and 450(a), as to the
requirements of income, population and land area; seat of government; and
no adverse effect to being a city of Quezon City, respectively, and its
Implementing Rules as provided in Article 11(b)(1) and (2), as to furnishing a
copy of the Quezon City Council of barangay resolution; and
b) The said law will in effect amend the Constitution. 1
Petitioner asserts that certifications as to income, population, and land area were not
presented to Congress during the deliberations that led to the passage of R.A. No. 8535.
This, he argues, is clear from the minutes of the public hearings conducted by
the Senate Committee on Local Government on the proposed charter of the City of
Novaliches. Petitioner particularly cites its hearings held on October 3 and 27, 1997. He is
silent, however, on the hearings held by the appropriate Committee in the House of
Representatives.
Likewise, petitioner points out that there is no certification attesting to the fact that the
mother local government unit, Quezon City, would not be adversely affected by the creation
of the City of Novaliches, in terms of income, population, and land area.
In their Comment, respondents through the Office of the Solicitor General, traversed all the
allegations of petitioner. They claimed he failed to substantiate said allegations with
convincing proof. In their memorandum, respondents argued that petitioner had the burden
of proof to overcome the legal presumption that Congress considered all the legal
requirements under the Local Government Code of 1991 in passing R.A. 8535. Further,
respondents stated that the petition itself is devoid of any pertinent document supporting
petitioner's claim that R.A. 8535 is unconstitutional. Respondents pray that the present
petition be dismissed for lack of merit.
In Victoriano v. Elizalde Rope Workers' Union, 2 we had occasion to stress that:
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. 3
Every statute is presumed valid. 4 Every law is presumed to have passed through regular
congressional processes. 5 A person asserting the contrary has the burden of proving his
allegations clearly and unmistakably. Having this in mind, we now proceed to examine
whether or not petitioner was able to successfully overcome the presumption of validity
accorded R.A. No. 8535.
The Local Government Code of 1991 provides under Section 7:
Sec. 7. Creation and Conversion. — As a general rule, the creation of a local
government unit or its conversion from one level to another level shall be
based on verifiable indicators of viability and projected capacity to provide
services, to wit:
(a) Income. — It must be sufficient, based on acceptable standards, to
provide for all essential government facilities and services and special
functions commensurate with the size of its population, as expected of the
local government unit concerned;
(b) Population. — It shall be determined as the total number of inhabitants
within the territorial jurisdiction of the local government unit concerned; and
(c) Land Area. — It must be contiguous, unless it comprises two or more
islands or is separated by a local government unit independent of the others;
Josef Elvin Campos
properly identified by metes and bounds with technical descriptions; and
sufficient to provide for such basic services and facilities to meet the
requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the
Department of Finance (DOF), the National Statistics Office (NSO), and the
Land Management Bureau (LMB) of the Department of Environment and
Natural Resources (DENR).
Corollarily, the Rules and Regulations Implementing the Code provide in Article 11:
Art. 11. Cities. — (a) Requisites for creation — A city shall not be created
unless the following requisites on income and either population or land area
are present:
(1) Income — an average annual income of not
less than Twenty Million Pesos
(P20,000,000.00), for the immediately preceding
two (2) consecutive years based on 1991
constant prices, as certified by DOF. The
average annual income shall include the income
accruing to the general fund, exclusive of special
funds, special accounts, transfers, and non
recurring income; and
(2) Population or land area — Population which
shall not be less than one hundred fifty thousand
(150,000) inhabitants, as certified by the NSO; or
land area which must be contiguous with an area
of at least one hundred (100) square kilometers,
as certified by LMB. The territory need not be
contiguous if it comprises two (2) or more islands
or is separated by a chartered city or cities which
do not contribute to the income of the province.
The land area requirement shall not apply where
the proposed city is composed of one (1) or more
islands. The territorial jurisdiction of a city sought
to be created shall be properly identified by
metes and bounds.
The creation of a new city shall not reduce the
land area, population, and income of the original
LGU or LGUs at the time of said creation to less
than the prescribed minimum requirements. All
expenses incidental to the creation shall be
borne by the petitioners.
Petitioner argues that no certifications attesting compliance with the foregoing requirements
were submitted to Congress, citing in particular public hearings held by the Senate
Committee on Local Government.
However, we note that the bill that eventually became R.A. No. 8535 originated in
the House of Representatives. Its principal sponsor is Cong. Dante Liban of Quezon City.
Petitioner did not present any proof, but only allegations, that no certifications were
submitted to the House Committee on Local Government, as is the usual practice in this
regard. Allegations, without more, cannot substitute for proof. The presumption stands that
the law passed by Congress, based on the bill of Cong. Liban, had complied with all the
requisites therefor.
Moreover, present during the public hearings held by the Senate Committee on Local
Government were resource persons from the different government offices like National
Statistics Office, Bureau of Local Government Finance, Land Management Bureau, and
Department of Budget, and Management, aside from officials of Quezon City itself.
The representative from the Bureau of Local Government Finance estimated the combined
average annual income of the 13 barangays 6 for the years 1995 and 1996 to be around
P26,952,128.26. 7 Under the Local Government Code, a proposed city must have an
average annual income of only at least P20,000,000.00 for the immediately preceding two
years. The representative from the NSO estimated the population in the barangays that
would comprise the proposed City of Novaliches to be around 347,310. 8 This figure is more
than the 150,000 required by the Implementing Rules. There is no need to consider the land
area, given these figures, since under the Local Government Code, the proposed city must
comply with requirements as regards income and population or land area. Other than the
Josef Elvin Campos
income requirement, the proposed city must have the requisite number of inhabitants or
land area. Compliance with either requirement, in addition to income, is sufficient. Judicial
notice may also be taken that Novaliches is now highly urbanized.
Petitioner avers that the oral manifestation made by the representatives of government
offices is not enough certification. But respondents reply that in the hearings, particularly by
the Local Government Committee headed by Senator Sotto, on October 3 and 27, 1997, the
DBM, DILG, and Finance Officials were present along with other officers armed with official
statistics and reference materials. In their official capacity, they spoke and shed light on
population, land area and income of the proposed city. Their official statements could serve
the same purpose contemplated by law requiring certificates. Their affirmation as well as
their oath as witnesses in open session of either the Senate or the House of
Representatives give even greater solemnity than a certification submitted to either
chamber routinely.
Moreover, petitioner failed to show that, aside from the oral declarations during the public
hearings, the representatives present did not also submit written certifications. Note that
under the Implementing Rules, written certifications are required to be attached to the
petition for the creation of a city, to be submitted by interested municipalities or barangays
to Congress in the form of a resolution. Petitioner, however, did not even bother to present
a copy of said petition if only to prove that it was without the written certifications attached
as required by law. We are thus constrained to presume, as respondents urge, that these
requirements were met appropriately in the passage of the assailed legislative act.
Petitioner then argues that R.A. No. 8535 failed to specify the seat of government of the
proposed City of Novaliches as required under Section 11(a) of the Local Government
Code:
Sec. 11. Selection and Transfer of Local Government Site, Offices, and
Facilities. — (a) The law or ordinance creating or merging local government
units shall specify the seat of government from where governmental and
corporate service shall be delivered. In selecting said site, factors relating to
geographical centrality, accessibility, availability of transportation and
communication facilities, drainage and sanitation, development and economic
progress, and other relevant considerations shall be taken into account.
Indeed, a reading of R.A. No. 8535 will readily show that it does not provide for a seat of
government. However, this omission, to our mind, is not as fatal to the validity of R.A. No.
8535 as petitioner makes it to be. We agree with respondents that under Section 12 of the
Local Government Code, which applies to the proposed City of Novaliches by virtue of
Section 54 of R.A. No. 8535, 9 the City of Novaliches can still establish a seat of
government after its creation. For said Code already provides as follows:
Sec. 12. Government Centers. — Provinces, cities, and municipalities shall
endeavor to establish a government center where offices, agencies, or
branches of the National Government, local government units, or
government-owned or-controlled corporations may, as far as practicable, be
located. In designating such a center, the local government unit concerned
shall take into account the existing facilities of national and local agencies
and offices which may serve as the government center as contemplated
under this Section. The National Government, local government unit or
government-owned or-controlled corporation concerned shall bear the
expenses for the construction of its buildings and facilities in the government
center.
While Section 12 speaks of the site of government centers, such site can very well also be
the seat of government, "from where governmental and corporate service shall be
delivered." 10
With regard to the alleged adverse effect on Quezon City by the creation of the City of
Novaliches, petitioner again failed to present any concrete evidence on this point. Quezon
City Mayor Ismael Mathay, Jr., was present during the deliberations of the Senate
Committee on Local Government, and made no mention of anything concerning such
adverse effects. As chief executive of Quezon City, Mayor Mathay would be the first person
to protest any development that might prove detrimental to Quezon City. The fact that he
did not raise any adverse issue during the public hearings on R.A. No. 8535, stressing
instead his concern on the matter of inclusion of all Quezon City voters in the plebiscite that
would decide the fate of the City of Novaliches, is indicative of the non-existence of such
negative issues. Moreover, in the plebiscite as contemplated on R.A. 8535, all persons
concerned will obviously have the opportunity to raise those issues even before they vote
on the principal question of the cityhood of Novaliches.
Josef Elvin Campos
That the Quezon City Council was not furnished a copy of the petition of concerned
barangays calling for the creation of the City of Novaliches, if true, will also not render
invalid R.A. No. 8535. The evident purpose of this requirement, found in the Implementing
Rules, is to inform the City Council of the move to create another city and to enable it to
formulate its comments and recommendations on said petition. The Quezon City Council
members are obviously aware of the petition. The matter has been widely publicized in the
mass media. Surely members of the Quezon City Council, including petitioner, could not
now be heard to claim they have not known of the contents of the barangays' petition to
create the City of Novaliches.
The proposed creation of the City of Novaliches will in no way result in a prohibited
amendment of the Constitution, contrary to petitioner's contention. The ordinance appended
to the Constitution merely apportions the seats of the House of Representatives to the
different legislative districts in the country. Nowhere does it provide that Metro Manila shall
forever be composed of only 17 cities and municipalities as claimed by petitioner. Too literal
a reading of the ordinance in or appendix of the Constitution will only result in its erroneous
interpretation.
Clearly, from the foregoing considerations, petitioner has failed to present clear and
convincing proof to defeat the presumption of constitutionality being enjoyed by R.A. No.
8535. Nor did he succeed to convince the Court with substantial and persuasive legal
reasons for us to grant the reliefs he seeks.
WHEREFORE, the instant petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Purisima, Pardo,
Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Panganiban, J., in the result.
Alvarez v. Guingona (G.R. No. 118303, 31 January 1996)

G.R. No. 118303 January 31, 1996
SENATOR HEHERSON T. ALVAREZ, SENATOR JOSE D. LINA, JR., MR. NICASIO B.
BAUTISTA, MR. JESUS P. GONZAGA, MR. SOLOMON D. MAYLEM, LEONORA C.
MEDINA, CASIANO S. ALIPON, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, HON.
RAFAEL ALUNAN, in his capacity as Secretary of Local Government, HON.
SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget, THE COMMISSION
ON AUDIT, HON. JOSE MIRANDA, in his capacity as Municipal Mayor of Santiago and
HON. CHARITO MANUFAY, HON. VICTORINO MIRANDA, JR., HON. ARTEMIO
ALVAREZ, HON. DANILO VERGARA, HON. PETER DE JESUS, HON. NELIA
NATIVIDAD, HON. CELSO CALEON and HON. ABEL MUSNGI, in their capacity as
SANGGUNIANG BAYAN MEMBERS, MR. RODRIGO L. SANTOS, in his capacity as
Municipal Treasurer, and ATTY. ALFREDO S. DIRIGE, in his capacity as Municipal
Administrator, respondents.
DECISION
HERMOSISIMA, JR., J.:
Of main concern to the petitioners is whether Republic Act No. 7720, just recently passed
by Congress and signed by the President into law, is constitutionally infirm.
Indeed, in this Petition for Prohibition with prayer for Temporary Restraining Order and
Preliminary Prohibitory Injunction, petitioners assail the validity of Republic Act No. 7720,
entitled, "An Act Converting the Municipality of Santiago, Isabela into an Independent
Component City to be known as the City of Santiago," mainly because the Act allegedly did
not originate exclusively in the House of Representatives as mandated by Section 24,
Article VI of the 1987 Constitution.
Also, petitioners claim that the Municipality of Santiago has not met the minimum average
annual income required under Section 450 of the Local Government Code of 1991 in order
to be converted into a component city.
Undisputed is the following chronicle of the metamorphosis of House Bill No. 8817 into
Republic Act No. 7720:
On April 18, 1993, HB No. 8817, entitled "An Act Converting the Municipality of Santiago
into an Independent Component City to be known as the City of Santiago," was filed in the
House of Representatives with Representative Antonio Abaya as principal author. Other
sponsors included Representatives Ciriaco Alfelor, Rodolfo Albano, Santiago Respicio and
Faustino Dy. The bill was referred to the House Committee on Local Government and the
House Committee on Appropriations on May 5, 1993.
Josef Elvin Campos
On May 19, 1993, June 1, 1993, November 28, 1993, and December 1, 1993, public
hearings on HB No. 8817 were conducted by the House Committee on Local Government.
The committee submitted to the House a favorable report, with amendments, on December
9, 1993.
On December 13, 1993, HB No. 8817 was passed by the House of Representatives on
Second Reading and was approved on Third Reading on December 17, 1993. On January
28, 1994, HB No. 8817 was transmitted to the Senate.
Meanwhile, a counterpart of HB No. 8817, Senate Bill No. 1243, entitled, "An Act
Converting the Municipality of Santiago into an Independent Component City to be Known
as the City of Santiago," was filed in the Senate. It was introduced by Senator Vicente Sotto
III, as principal sponsor, on May 19, 1993. This was just after the House of Representatives
had conducted its first public hearing on HB No. 8817.
On February 23, 1994, or a little less than a month after HB No. 8817 was transmitted to the
Senate, the Senate Committee on Local Government conducted public hearings on SB No.
1243. On March 1, 1994, the said committee submitted Committee Report No. 378 on HB
No. 8817, with the recommendation that it be approved without amendment, taking into
consideration the reality that H.B. No. 8817 was on all fours with SB No. 1243. Senator
Heherson T. Alvarez, one of the herein petitioners, indicated his approval thereto by signing
said report as member of the Committee on Local Government.
On March 3, 1994, Committee Report No. 378 was passed by the Senate on Second
Reading and was approved on Third Reading on March 14, 1994. On March 22, 1994, the
House of Representatives, upon being apprised of the action of the Senate, approved the
amendments proposed by the Senate.
The enrolled bill, submitted to the President on April 12, 1994, was signed by the Chief
Executive on May 5, 1994 as Republic Act No. 7720. When a plebiscite on the Act was held
on July 13, 1994, a great majority of the registered voters of Santiago voted in favor of the
conversion of Santiago into a city.
The question as to the validity of Republic Act No. 7720 hinges on the following twin issues:
(I) Whether or not the Internal Revenue Allotments (IRAs) are to be included in the
computation of the average annual income of a municipality for purposes of its conversion
into an independent component city, and (II) Whether or not, considering that the Senate
passed SB No. 1243, its own version of HB No. 8817, Republic Act No. 7720 can be said to
have originated in the House of Representatives.
I. The annual income of a local government unit includes the IRAs
Petitioners claim that Santiago could not qualify into a component city because its average
annual income for the last two (2) consecutive years based on 1991 constant prices falls
below the required annual income of Twenty Million Pesos (P20,000,000.00) for its
conversion into a city, petitioners having computed Santiago's average annual income in
the following manner:
Total income (at 1991 constant prices) P 20,379,057.07
for 1991
Total income (at 1991 constant prices) P 21,570,106.87
for 1992
Total income for 1991 and 1992 P 41,949,163.94
Minus:
IRAs for 1991 and 1992 P 15,730,043.00
Total income for 1991 and 1992 P 26,219,120.94
Average Annual Income P 13,109,560.47
===============
By dividing the total income of Santiago for calendar years 1991 and 1992, after deducting
the IRAs, the average annual income arrived at would only be P13,109,560.47 based on the
1991 constant prices. Thus, petitioners claim that Santiago's income is far below the
aforesaid Twenty Million Pesos average annual income requirement.
The certification issued by the Bureau of Local Government Finance of the Department of
Finance, which indicates Santiago's average annual income to be P20,974,581.97, is
allegedly not accurate as the Internal Revenue Allotments were not excluded from the
computation. Petitioners asseverate that the IRAs are not actually income but transfers
and/or budgetary aid from the national government and that they fluctuate, increase or
decrease, depending on factors like population, land and equal sharing.
In this regard, we hold that petitioners asseverations are untenable because Internal
Revenue Allotments form part of the income of Local Government Units.
Josef Elvin Campos
It is true that for a municipality to be converted into a component city, it must, among others,
have an average annual income of at least Twenty Million Pesos for the last two (2)
consecutive years based on 1991 constant prices. 1 Such income must be duly certified by
the Department of Finance.
Resolution of the controversy regarding compliance by the Municipality of Santiago with the
aforecited income requirement hinges on a correlative and contextual explication of the
meaning of internal revenue allotments (IRAs) vis-a-vis the notion of income of a local
government unit and the principles of local autonomy and decentralization underlying the
institutionalization and intensified empowerment of the local government system.
A Local Government Unit is a political subdivision of the State which is constituted by law
and possessed of substantial control over its own affairs. 3 Remaining to be an intra
sovereign subdivision of one sovereign nation, but not intended, however, to be
an imperium in imperio,4 the local government unit is autonomous in the sense that it is
given more powers, authority, responsibilities and resources. 5 Power which used to be
highly centralized in Manila, is thereby deconcentrated, enabling especially the peripheral
local government units to develop not only at their own pace and discretion but also with
their own resources and assets.
The practical side to development through a decentralized local government system
certainly concerns the matter of financial resources. With its broadened powers and
increased responsibilities, a local government unit must now operate on a much wider
scale. More extensive operations, in turn, entail more expenses. Understandably, the
vesting of duty, responsibility and accountability in every local government unit is
accompanied with a provision for reasonably adequate resources to discharge its powers
and effectively carry out its functions. 7 Availment of such resources is effectuated through
the vesting in every local government unit of (1) the right to create and broaden its own
source of revenue; (2) the right to be allocated a just share in national taxes, such share
being in the form of internal revenue allotments (IRAs); and (3) the right to be given its
equitable share in the proceeds of the utilization and development of the national wealth, if
any, within its territorial boundaries.8
The funds generated from local taxes, IRAs and national wealth utilization proceeds accrue
to the general fund of the local government and are used to finance its operations subject to
specified modes of spending the same as provided for in the Local Government Code and
its implementing rules and regulations. For instance, not less than twenty percent (20%) of
the IRAs must be set aside for local development projects. 9 As such, for purposes of budget
preparation, which budget should reflect the estimates of the income of the local
government unit, among others, the IRAs and the share in the national wealth utilization
proceeds are considered items of income. This is as it should be, since income is defined in
the Local Government Code to be all revenues and receipts collected or received forming
the gross accretions of funds of the local government unit. 10
The IRAs are items of income because they form part of the gross accretion of the funds of
the local government unit. The IRAs regularly and automatically accrue to the local treasury
without need of any further action on the part of the local government unit. 11 They thus
constitute income which the local government can invariably rely upon as the source of
much needed funds.
For purposes of converting the Municipality of Santiago into a city, the Department of
Finance certified, among others, that the municipality had an average annual income of at
least Twenty Million Pesos for the last two (2) consecutive years based on 1991 constant
prices. This, the Department of Finance did after including the IRAs in its computation of
said average annual income.
Furthermore, Section 450 (c) of the Local Government Code provides that "the average
annual income shall include the income accruing to the general fund, exclusive of special
funds, transfers, and non-recurring income." To reiterate, IRAs are a regular, recurring item
of income; nil is there a basis, too, to classify the same as a special fund or transfer, since
IRAs have a technical definition and meaning all its own as used in the Local Government
Code that unequivocally makes it distinct from special funds or transfers referred to when
the Code speaks of "funding support from the national government, its instrumentalities and
government-owned-or-controlled corporations".12
Thus, Department of Finance Order No. 35-93 13 correctly encapsulizes the full import of the
above disquisition when it defined ANNUAL INCOME to be "revenues and receipts realized
by provinces, cities and municipalities from regular sources of the Local General
Fund including the internal revenue allotment and other shares provided for in Sections 284,
290 and 291 of the Code, but exclusive of non-recurring receipts, such as other national
aids, grants, financial assistance, loan proceeds, sales of fixed assets, and similar others"
Josef Elvin Campos
(Emphasis ours).14 Such order, constituting executive or contemporaneous construction of a
statute by an administrative agency charged with the task of interpreting and applying the
same, is entitled to full respect and should be accorded great weight by the courts, unless
such construction is clearly shown to be in sharp conflict with the Constitution, the
governing statute, or other laws.15
II. In the enactment of RA No. 7720, there was compliance with Section 24, Article
VI of the 1987 Constitution
Although a bill of local application like HB No. 8817 should, by constitutional
prescription,16 originate exclusively in the House of Representatives, the claim of petitioners
that Republic Act No. 7720 did not originate exclusively in the House of Representatives
because a bill of the same import, SB No. 1243, was passed in the Senate, is untenable
because it cannot be denied that HB No. 8817 was filed in the House of Representatives
first before SB No. 1243 was filed in the Senate. Petitioners themselves cannot disavow
their own admission that HB No. 8817 was filed on April 18, 1993 while SB No. 1243 was
filed on May 19, 1993. The filing of HB No. 8817 was thus precursive not only of the said
Act in question but also of SB No. 1243. Thus, HB No. 8817, was the bill that initiated the
legislative process that culminated in the enactment of Republic Act No. 7720. No violation
of Section 24, Article VI, of the 1987 Constitution is perceptible under the circumstances
attending the instant controversy.
Furthermore, petitioners themselves acknowledge that HB No. 8817 was already approved
on Third Reading and duly transmitted to the Senate when the Senate Committee on Local
Government conducted its public hearing on HB No. 8817. HB No. 8817 was approved on
the Third Reading on December 17, 1993 and transmitted to the Senate on January 28,
1994; a little less than a month thereafter, or on February 23, 1994, the Senate Committee
on Local Government conducted public hearings on SB No. 1243. Clearly, the Senate held
in abeyance any action on SB No. 1243 until it received HB No. 8817, already approved on
the Third Reading, from the House of Representatives. The filing in the Senate of a
substitute bill in anticipation of its receipt of the bill from the House, does not contravene the
constitutional requirement that a bill of local application should originate in the House of
Representatives, for as long as the Senate does not act thereupon until it receives the
House bill.
We have already addressed this issue in the case of Tolentino vs. Secretary of
Finance.17 There, on the matter of the Expanded Value Added Tax (EVAT) Law, which, as a
revenue bill, is nonetheless constitutionally required to originate exclusively in the House of
Representatives, we explained:
. . . To begin with, it is not the law — but the revenue bill — which is required by the
Constitution to "originate exclusively" in the House of Representatives. It is important
to emphasize this, because a bill originating in the House may undergo such
extensive changes in the Senate that the result may be a rewriting of the whole. . . .
as a result of the Senate action, a distinct bill may be produced. To insist that a
revenue statute — and not only the bill which initiated the legislative process
culminating in the enactment of the law — must substantially be the same as the
House bill would be to deny the Senate's power not only to "concur with
amendments" but also to "propose amendments." It would be to violate the
coequality of legislative power of the two houses of Congress and in fact make the
House superior to the Senate.
xxx xxx xxx
It is insisted, however, that S. No. 1630 was passed not in substitution of H. No.
11197 but of another Senate bill (S. No. 1129) earlier filed and that what the Senate
did was merely to "take [H. No. 11197] into consideration" in enacting S. No. 1630.
There is really no difference between the Senate preserving H. No. 11197 up to the
enacting clause and then writing its own version following the enacting clause
(which, it would seem petitioners admit is an amendment by substitution), and, on
the other hand, separately presenting a bill of its own on the same subject matter. In
either case the result are two bills on the same subject.
Indeed, what the Constitution simply means is that the initiative for filing revenue,
tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills
of local application must come from the House of Representatives on the theory that,
elected as they are from the districts, the members of the House can be expected to
be more sensitive to the local needs and problems. On the other hand, the senators,
who are elected at large, are expected to approach the same problems from the
national perspective. Both views are thereby made to bear on the enactment of such
laws.
Josef Elvin Campos
Nor does the Constitution prohibit the filing in the Senate of a substitute bill in
anticipation of its receipt of the bill from the House, so long as action by the Senate
as a body is withheld pending receipt of the House bill. . . . 18
III. Every law, including RA No. 7720, has in its favor the presumption of
constitutionality
It is a well-entrenched jurisprudential rule that on the side of every law lies the presumption
of constitutionality.19 Consequently, for RA No. 7720 to be nullified, it must be shown that
there is a clear and unequivocal breach of the Constitution, not merely a doubtful and
equivocal one; in other words, the grounds for nullity must be clear and beyond reasonable
doubt.20 Those who petition this court to declare a law to be unconstitutional must clearly
and fully establish the basis that will justify such a declaration; otherwise, their petition must
fail. Taking into consideration the justification of our stand on the immediately preceding
ground raised by petitioners to challenge the constitutionality of RA No. 7720, the Court
stands on the holding that petitioners have failed to overcome the presumption. The
dismissal of this petition is, therefore, inevitable.
WHEREFORE, the instant petition is DISMISSED for lack of merit with costs against
petitioners.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Francisco and Panganiban, JJ., concur.
Mariano v. COMELEC (G.R. No. 118577, 07 March 1995)
G.R. No. 118577 March 7, 1995
JUANITO MARIANO, JR. et al., petitioners,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF
MAKATI, respondents.
G.R. No. 118627 March 7, 1995
JOHN R. OSMEÑA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF
MAKATI, respondents.
PUNO, J.:
At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as
unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act
Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City
of Makati."1
G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by
petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie
Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba,
and Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others
are residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as
unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the following grounds:
1. Section 2 of R.A. No. 7854 did not properly identify the land area or
territorial jurisdiction of Makati by metes and bounds, with technical
descriptions, in violation of Section 10, Article X of the Constitution, in relation
to Sections 7 and 450 of the Local Government Code;
2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three
consecutive term" limit for local elective officials, in violation of Section 8,
Article X and Section 7, Article VI of the Constitution.
3. Section 52 of R.A. No. 7854 is unconstitutional for:
(a) it increased the legislative district of Makati only by special
law (the Charter in violation of the constitutional provision
requiring a general reapportionment law to be passed by
Congress within three (3) years following the return of every
census;
(b) the increase in legislative district was not expressed in the
title of the bill; and
(c) the addition of another legislative district in Makati is not in
accord with Section 5 (3), Article VI of the Constitution for as of
the latest survey (1990 census), the population of Makati
stands at only 450,000.
Josef Elvin Campos
G.R. No. 118627 was filed by the petitioner John H. Osmeña as senator, taxpayer, and
concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the
same grounds as aforestated.
We find no merit in the petitions.
I
Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of
Makati, thus:
Sec. 2. The City of Makati. — The Municipality of Makati shall be converted
into a highly urbanized city to be known as the City of Makati, hereinafter
referred to as the City, which shall comprise the present territory of the
Municipality of Makati in Metropolitan Manila Area over which it has
jurisdiction bounded on the northeast by Pasig River and beyond by the City
of Mandaluyong and the Municipality of Pasig; on the southeast by the
municipalities of Pateros and Taguig; on the southwest by the City of Pasay
and the Municipality of Taguig; and, on the northwest, by the City of Manila.
The foregoing provision shall be without prejudice to the resolution by the
appropriate agency or forum of existing boundary disputes or cases involving
questions of territorial jurisdiction between the City of Makati and the
adjoining local government units. (Emphasis supplied)
In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the
Local Government Code which require that the area of a local government unit should be
made by metes and bounds with technical descriptions. 2
The importance of drawing with precise strokes the territorial boundaries of a local unit of
government cannot be overemphasized. The boundaries must be clear for they define the
limits of the territorial jurisdiction of a local government unit. It can legitimately exercise
powers of government only within the limits, its acts are ultra vires. Needless to state, any
uncertainty in the boundaries of local government units will sow costly conflicts in the
exercise of governmental powers which ultimately will prejudice the people's welfare. This is
the evil sought to avoided by the Local Government Code in requiring that the land area of a
local government unit must be spelled out in metes and bounds, with technical descriptions.
Given the facts of the cases at bench, we cannot perceive how this evil can be brought
about by the description made in section 2 of R.A. No. 7854, Petitioners have not
demonstrated that the delineation of the land area of the proposed City of Makati will cause
confusion as to its boundaries. We note that said delineation did not change even by an
inch the land area previously covered by Makati as a municipality. Section 2 did not add,
subtract, divide, or multiply the established land area of Makati. In language that cannot be
any clearer, section 2 stated that, the city's land area "shall comprise the present territory of
the municipality."
The deliberations of Congress will reveal that there is a legitimate reason why the land area
of the proposed City of Makati was not defined by metes and bounds, with technical
descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute
between the municipalities of Makati and Taguig over Fort Bonifacio was under court
litigation. Out of a becoming sense of respect to co-equal department of government,
legislators felt that the dispute should be left to the courts to decide. They did not want to
foreclose the dispute by making a legislative finding of fact which could decide the issue.
This would have ensued if they defined the land area of the proposed city by its exact metes
and bounds, with technical descriptions. 3 We take judicial notice of the fact that Congress
has also refrained from using the metes and bounds description of land areas of other local
government units with unsettled boundary disputes. 4
We hold that the existence of a boundary dispute does not per se present an
insurmountable difficulty which will prevent Congress from defining with reasonable
certitude the territorial jurisdiction of a local government unit. In the cases at bench,
Congress maintained the existing boundaries of the proposed City of Makati but as an act of
fairness, made them subject to the ultimate resolution by the courts. Considering these
peculiar circumstances, we are not prepared to hold that section 2 of R.A. No. 7854 is
unconstitutional. We sustain the submission of the Solicitor General in this regard, viz.:
Going now to Sections 7 and 450 of the Local Government Code, it is beyond
cavil that the requirement stated therein, viz.: "the territorial jurisdiction of
newly created or converted cities should be described by meted and bounds,
with technical descriptions" — was made in order to provide a means by
which the area of said cities may be reasonably ascertained. In other words,
the requirement on metes and bounds was meant merely as tool in the
establishment of local government units. It is not an end in itself. Ergo, so
Josef Elvin Campos
long as the territorial jurisdiction of a city may be reasonably ascertained, i.e.,
by referring to common boundaries with neighboring municipalities, as in this
case, then, it may be concluded that the legislative intent behind the law has
been sufficiently served.
Certainly, Congress did not intends that laws creating new cities must contain
therein detailed technical descriptions similar to those appearing in Torrens
titles, as petitioners seem to imply. To require such description in the law as a
condition sine qua non for its validity would be to defeat the very purpose
which the Local Government Code to seeks to serve. The manifest intent of
the Code is to empower local government units and to give them their rightful
due. It seeks to make local governments more responsive to the needs of
their constituents while at the same time serving as a vital cog in national
development. To invalidate R.A. No. 7854 on the mere ground that no
cadastral type of description was used in the law would serve the letter but
defeat the spirit of the Code. It then becomes a case of the master serving
the slave, instead of the other way around. This could not be the intendment
of the law.
Too well settled is the rule that laws must be enforced when ascertained,
although it may not be consistent with the strict letter of the statute. Courts
will not follow the letter of the statute when to do so would depart from the
true intent of the legislature or would otherwise yield conclusions inconsistent
with the general purpose of the act. (Torres v. Limjap, 56 Phil., 141; Tañada
v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is
an active instrument of government, which, for purposes of interpretation,
means that laws have ends to achieve, and statutes should be so construed
as not to defeat but to carry out such ends and purposes (Bocolbo v.
Estanislao, 72 SCRA 520). The same rule must indubitably apply to the case
at bar.
II
Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of
R.A. No. 7854. Section 51 states:
Sec. 51. Officials of the City of Makati. — The represent elective officials of
the Municipality of Makati shall continue as the officials of the City of Makati
and shall exercise their powers and functions until such time that a new
election is held and the duly elected officials shall have already qualified and
assume their offices: Provided, The new city will acquire a new corporate
existence. The appointive officials and employees of the City shall likewise
continues exercising their functions and duties and they shall be automatically
absorbed by the city government of the City of Makati.
They contend that this section collides with section 8, Article X and section 7, Article VI of
the Constitution which provide:
Sec. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official
shall serve for more than three consecutive terms. 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.
Petitioners stress that under these provisions, elective local officials, including Members of
the House of Representative, have a term of three (3) years and are prohibited from
serving for more than three (3) consecutive terms. They argue that by providing that the
new city shall acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the
term of the present municipal elective officials of Makati and disregards the terms previously
served by them. In particular, petitioners point that section 51 favors the incumbent Makati
Mayor, respondent Jejomar Binay, who has already served for two (2) consecutive terms.
They further argue that should Mayor Binay decide to run and eventually win as city
mayor in the coming elections, he can still run for the same position in 1998 and seek
Josef Elvin Campos
another three-year consecutive term since his previous three-year consecutive term
as municipal mayor would not be counted. Thus, petitioners conclude that said section 51
has been conveniently crafted to suit the political ambitions of respondent Mayor Binay.
We cannot entertain this challenge to the constitutionality of section 51. The requirements
before a litigant can challenge the constitutionality of a law are well delineated. They are: 1)
there must be an actual case or controversy; (2) the question of constitutionality must be
raised by the proper party; (3) the constitutional question must be raised at the earliest
possible opportunity; and (4) the decision on the constitutional question must be necessary
to the determination of the case itself.5
Petitioners have far from complied with these requirements. The petition is premised on the
occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming
mayoralty elections; that he would be re-elected in said elections; and that he would seek
re-election for the same position in the 1998 elections. Considering that these contingencies
may or may not happen, petitioners merely pose a hypothetical issue which has yet to ripen
to an actual case or controversy. Petitioners who are residents of Taguig (except Mariano)
are not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic
issue in a petition for declaratory relief over which this Court has no jurisdiction.
III
Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52,
Article X of R.A. No. 7854. Section 52 of the Charter provides:
Sec. 52. Legislative Districts. — Upon its conversion into a highly-urbanized
city, Makati shall thereafter have at least two (2) legislative districts that shall
initially correspond to the two (2) existing districts created under Section 3(a)
of Republic Act. No. 7166 as implemented by the Commission on Elections to
commence at the next national elections to be held after the effectivity of this
Act. Henceforth, barangays Magallanes, Dasmariñas and Forbes shall be
with the first district, in lieu of Barangay Guadalupe-Viejo which shall form
part of the second district. (emphasis supplied)
They contend. that the addition of another legislative district in Makati is unconstitutional for:
(1) reapportionment6 cannot made by a special law, (2) the addition of a legislative district is
not expressed in the title of the bill 7 and (3) Makati's population, as per the 1990 census,
stands at only four hundred fifty thousand (450,000).
These issues have been laid to rest in the recent case of Tobias v. Abalos.8 In said case,
we ruled that reapportionment of legislative districts may be made through a special law,
such as in the charter of a new city. The Constitution 9 clearly provides that Congress shall
be composed of not more than two hundred fifty (250) members, unless otherwise fixed by
law. As thus worded, the Constitution did not preclude Congress from increasing its
membership by passing a law, other than a general reapportionment of the law. This is its
exactly what was done by Congress in enacting R.A. No. 7854 and providing for an
increase in Makati's legislative district. Moreover, to hold that reapportionment can only be
made through a general apportionment law, with a review of all the legislative districts
allotted to each local government unit nationwide, would create an inequitable situation
where a new city or province created by Congress will be denied legislative representation
for an indeterminate period of time. 10 The intolerable situations will deprive the people of a
new city or province a particle of their sovereignty. 11 Sovereignty cannot admit of any kind
of subtraction. It is indivisible. It must be forever whole or it is not sovereignty.
Petitioners cannot insist that the addition of another legislative district in Makati is not in
accord with section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty thousand
(450,000). 13 Said section provides, inter alia, that a city with a population of at least two
hundred fifty thousand (250,000) shall have at least one representative. Even granting that
the population of Makati as of the 1990 census stood at four hundred fifty thousand
(450,000), its legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the
Ordinance appended to the Constitution provides that a city whose population
has increased to more than two hundred fifty thousand (250,000) shall be entitled to at
least one congressional representative. 14
Finally, we do not find merit in petitioners' contention that the creation of an additional
legislative district in Makati should have been expressly stated in the title of the bill. In the
same case of Tobias v. Abalos, op cit., we reiterated the policy of the Court favoring a
liberal construction of the "one title-one subject" rule so as not to impede legislation. To be
sure, with Constitution does not command that the title of a law should exactly mirror, fully
index, or completely catalogue all its details. Hence, we ruled that "it should be sufficient
Josef Elvin Campos
compliance if the title expresses the general subject and all the provisions are germane to
such general subject."
WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.
Separate Opinions
DAVIDE, JR., J., concurring:
I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a
few observations.
I.
Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or
barangay may be created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government code and subject
to the approval by a majority of the votes cast in a plebiscite in the political units directly
affected." These criteria are now set forth in Section 7 of the Local Government Code of
1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government
unit to be created or converted should be properly identified by metes and bounds with
technical descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly
Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of
the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes and bounds as a condition sine
qua non for the creation of a local government unit or its conversion from one level to
another. The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a
matter of fact, the section starts with the clause "as a general rule." The petitioners' reliance
on Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of
a municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized
city. It pertinently reads as follows:
Sec. 450. Requisite for creation. — (a) A municipality or a cluster of
xxx xxx xxx
(b) The territorial jurisdiction of a newly created city shall be properly
identified by metes and bounds. . . .
The constitution classifies cities as either highly urbanized or component. Section 12 of
Article X thereof provides:
Sec. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The voters
of component cities within a province, whose charters contain no such
prohibition, shall not be deprived of their right to vote for elective provincial
officials.
And Section 451 of R.A. No. 7160 provides:
Sec. 451. Cities Classified. — A city may either be component or highly
II.
Strictly speaking, the increase in the number of legislative seats for the City of Makati
provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise
fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause
contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the said
Section which reads in full as follows:
Within three years following the return of every census, the Congress shall
make a reapportionment of legislative districts based on the standards
provided in this section.
In short, the clause refers to a general reapportionment law.
Josef Elvin Campos
The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution which reads:
Sec. 1. For purposes of the election of Members of the House of
Representatives of the First Congress of the Philippines under the
Constitution proposed by the 1986 Constitutional Commission and
subsequent elections, and until otherwise provided by law, the Members
thereof shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila Area as follows:
METROPOLITAN MANILA AREA
xxx xxx xxx
MAKATI one (1)
xxx xxx xxx
Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty thousand
shall be entitled in the immediately following election to at least one Member
or such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province was
created, or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission
on Elections but such adjustment shall not be made within one hundred and
twenty days before the election. (Emphases supplied)
Separate Opinions
DAVIDE, JR., J., concurring:
I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a
few observations.
I.
Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or
barangay may be created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government code and subject
to the approval by a majority of the votes cast in a plebiscite in the political units directly
affected." These criteria are now set forth in Section 7 of the Local Government Code of
1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government
unit to be created or converted should be properly identified by metes and bounds with
technical descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly
Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of
the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes and bounds as a condition sine
qua non for the creation of a local government unit or its conversion from one level to
another. The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a
matter of fact, the section starts with the clause "as a general rule." The petitioners' reliance
on Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of
a municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized
city. It pertinently reads as follows:
Sec. 450. Requisite for creation. — (a) A municipality or a cluster of
xxx xxx xxx
(b) The territorial jurisdiction of a newly created city shall be properly
identified by metes and bounds. . . .
The constitution classifies cities as either highly urbanized or component. Section 12 of
Article X thereof provides:
Sec. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The voters
of component cities within a province, whose charters contain no such
prohibition, shall not be deprived of their right to vote for elective provincial
officials.
And Section 451 of R.A. No. 7160 provides:
Josef Elvin Campos
Sec. 451. Cities Classified. — A city may either be component or highly
II.
Strictly speaking, the increase in the number of legislative seats for the City of Makati
provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise
fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause
contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the said
Section which reads in full as follows:
Within three years following the return of every census, the Congress shall
make a reapportionment of legislative districts based on the standards
provided in this section.
In short, the clause refers to a general reapportionment law.
The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution which reads:
Sec. 1. For purposes of the election of Members of the House of
Representatives of the First Congress of the Philippines under the
Constitution proposed by the 1986 Constitutional Commission and
subsequent elections, and until otherwise provided by law, the Members
thereof shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila Area as follows:
METROPOLITAN MANILA AREA
xxx xxx xxx
MAKATI one (1)
xxx xxx xxx
Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty thousand
shall be entitled in the immediately following election to at least one Member
or such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province was
created, or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission
on Elections but such adjustment shall not be made within one hundred and
twenty days before the election. (Emphases supplied)
Cawaling Jr. v. COMELEC (G.R. No. 146319, October 26, 2001)
G.R. No. 146319 October 26, 2001
BENJAMIN E. CAWALING, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS, and Rep. Francis Joseph G.
Escudero, respondents.
x---------------------------------------------------------x
G.R. No. 146342 October 26, 2001
BENJAMIN E. CAWALING, JR., petitioner,
vs.
THE EXECUTIVE SECRETARY TO THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT,
SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, SOLICITOR
GENERAL, PROVINCE OF SORSOGON, MUNICIPALITY OF SORSOGON,
MUNICIPALITY OF BACON, respondents.
SANDOVAL-GUTIERREZ, J.:
Before us are two (2) separate petitions challenging the constitutionality of Republic Act No.
8806 which created the City of Sorsogon and the validity of the plebiscite conducted
pursuant thereto.
On August 16, 2000, former President Joseph E. Estrada signed into law R.A. No. 8806, an
"Act Creating The City Of Sorsogon By Merging The Municipalities Of Bacon And Sorsogon
In The Province Of Sorsogon, And Appropriating Funds Therefor." 1
Josef Elvin Campos
Pursuant to Section 10, Article X of the Constitution, 2 the Commission on Elections
(COMELEC), on December 16, 2000, conducted a plebiscite in the Municipalities of Bacon
and Sorsogon and submitted the matter for ratification.
On December 17, 2000, the Plebiscite City Board of Canvassers (PCBC) proclaimed 3 the
creation of the City of Sorsogon as having been ratified and approved by the majority of the
votes cast in the plebiscite.4
Invoking his right as a resident and taxpayer of the former Municipality of Sorsogon,
Benjamin E. Cawaling, Jr. filed on January 2, 2001 the present petition for certiorari (G.R.
No. 146319) seeking the annulment of the plebiscite on the following grounds:
A. The December 16, 2000 plebiscite was conducted beyond the required 120-day
period from the approval of R.A. 8806, in violation of Section 54 thereof; and
B. Respondent COMELEC failed to observe the legal requirement of twenty (20) day
extensive information campaign in the Municipalities of Bacon and Sorsogon before
conducting the plebiscite.
Two days after filing the said action, or on January 4, 2001, petitioner instituted another
petition (G.R. No. 146342), this time for prohibition seeking to enjoin the further
implementation of R.A. No. 8806 for being unconstitutional, contending, in essence, that:
1. The creation of Sorsogon City by merging two municipalities violates Section
450(a) of the Local Government Code of 1991 (in relation to Section 10, Article X of
the Constitution) which requires that only "a municipality or a cluster
of barangays may be converted into a component city"; and
2. R.A. No. 8806 contains two (2) subjects, namely, the (a) creation of the City of
Sorsogon and the (b) abolition of the Municipalities of Bacon and Sorsogon, thereby
violating the "one subject-one bill" rule prescribed by Section 26(1), Article VI of the
Constitution.
Hence, the present petitions which were later consolidated. 5
Significantly, during the pendency of these cases, specifically during the May 14, 2001
elections, the newly-created Sorsogon City had the first election of its officials. Since then,
the City Government of Sorsogon has been regularly discharging its corporate and political
powers pursuant to its charter, R.A. No. 8806.
We shall first delve on petitioner's constitutional challenge against R.A. No. 8806 in G.R No.
146342.
Every statute has in its favor the presumption of constitutionality. 6 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. 7 The theory is
that every law, being the joint act of the Legislature and the Executive, has passed careful
scrutiny to ensure that it is in accord with the fundamental law. 8 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. 9 In
other words the grounds for nullity must be beyond reasonable doubt, 10 for to doubt is to
sustain.11
Petitioner initially reject R.A. No. 8806 because it violates Section 10, Article X of the
Constitution which provides, inter alia:
"SECTION 10. No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in accordance with
the criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political units directly affected."
(Emphasis ours)
The criteria for the creation of a city is prescribed in Section 450 of the Local Government
Code of 1991 (the Code), thus:
"SECTION 450. Requisites for Creation. — (a) A municipality or a cluster
of barangays may be converted into a component city if it has an average annual
income, as certified by the Department of Finance, of at least Twenty million
(P20,000,000.00) for the last two (2) consecutive years based on 1991 constant
prices, and if it has either of the following requisites:
inhabitants, as certified by the National Statistics Office:
Josef Elvin Campos
metes and bounds. The requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more islands. The territory need
not be contiguous if it comprises two (2) or more islands.
fund, exclusive of specific funds, transfers, and non-recurring income." (Emphasis
ours)
Petitioner is not concerned whether the creation of Sorsogon City through R.A. No. 8806
complied with the criteria set by the Code as to income, population and land area. What he
is assailing is its mode of creation. He contends that under Section 450(a) of the Code, a
component city may be created only by converting "a municipality or a cluster
of barangays," not by merging two municipalities, as what R.A. No. 8806 has done.
This contention is devoid of merit.
Petitioner's constricted reading of Section 450(a) of the Code is erroneous. The phrase "A
municipality or a cluster of barangays may be converted into a component city" is not a
criterion but simply one of the modes by which a city may be created. Section 10, Article X
of the Constitution, quoted earlier and which petitioner cited in support of his posture, allows
the merger of local government units to create a province city, municipality or barangay in
accordance with the criteria established by the Code. Thus, Section 8 of the Code distinctly
provides:
"SECTION 8. Division and Merger. — Division and merger of existing local
government units shall comply with the same requirements herein prescribed for
their creation: Provided, however, That such division shall not reduce the income,
population, or land area of the local government unit or units concerned to less than
the minimum requirements prescribed in this Code: Provided, further, That the
income classification of the original local government unit or units shall not fall below
its current income classification prior to such division. . . . ." (Emphasis ours)
Verily, the creation of an entirely new local government unit through a division or
a merger of existing local government units is recognized under the Constitution, provided
that such merger or division shall comply with the requirements prescribed by the Code.
Petitioner further submits that, in any case, there is no "compelling" reason for merging the
Municipalities of Bacon and Sorsogon in order to create the City of Sorsogon considering
that the Municipality of Sorsogon alone already qualifies to be upgraded to a component
city. This argument goes into the wisdom of R.A. No. 8806, a matter which we are not
competent to rule. In Angara v. Electoral Commission,12 this Court, through Justice Jose P.
Laurel, made it clear that "the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation." In the exercise of judicial power, we are allowed only "to settle
actual controversies involving rights which are legally demandable and enforceable," 13 and
"may not annul an act of the political departments simply because we feel it is unwise or
impractical. "14
Next, petitioner assails R.A. No. 8806 since it contravenes the "one subject-one bill" rule
enunciated in Section 26 (1), Article VI of the Constitution, to wit:
"SECTION 26 (1). Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof." (Emphasis ours)
Petitioner contends that R.A. No. 8806 actually embraces two principal subjects which are:
(1) the creation of the City of Sorsogon, and (2) the abolition of the Municipalities of Bacon
and Sorsogon. While the title of the Act sufficiently informs the public about the creation of
Sorsogon City, petitioner claims that no such information has been provided on the abolition
of the Municipalities of Bacon and Sorsogon.
The argument is far from persuasive. Contrary to petitioner's assertion, there is only one
subject embraced in the title of the law, that is, the creation of the City of Sorsogon. The
abolition/cessation of the corporate existence of the Municipalities of Bacon and Sorsogon
due to their merger is not a subject separate and distinct from the creation of Sorsogon City.
Such abolition/cessation was but the logical, natural and inevitable consequence of the
merger. Otherwise put, it is the necessary means by which the City of Sorsogon was
created. Hence, the title of the law, "An Act Creating the City of Sorsogon by Merging the
Municipalities of Bacon and Sorsogon in the Province of Sorsogon, and Appropriating
Funds Therefor," cannot be said to exclude the incidental effect of abolishing the two
municipalities, nor can it be considered to have deprived the public of fair information on this
consequence.
It is well-settled that the "one title-one subject" rule does not require the Congress to employ
in the title of the enactment language of such precision as to mirror, fully index or catalogue
all the contents and the minute details therein. 15 The rule is sufficiently complied with if the
Josef Elvin Campos
title is comprehensive enough as to include the general object which the statute seeks to
effect,16 and where, as here, the persons interested are informed of the nature, scope and
consequences of the proposed law and its operation. 17 Moreover, this Court has invariably
adopted a liberal rather than technical construction of the rule "so as not to cripple or
impede legislation."18
Consequently, we hold that petitioner has failed to present clear and convincing proof to
defeat the presumption of constitutionality of R.A. No. 8806.
We now turn to G.R. No. 146319 wherein petitioner assails the validity of the plebiscite
conducted by the COMELEC for the ratification of the creation of Sorsogon City.
Petitioner asserts that the plebiscite required by R.A. No. 8806 should be conducted within
120 days from the "approval" of said Act per express provision of its Section 54, viz:
"SECTION 54. Plebiscite. — The City of Sorsogon shall acquire corporate existence
upon the ratification of its creation by a majority of the votes cast by the qualified
voters in a plebiscite to be conducted in the present municipalities of Bacon
and Sorsogon within one hundred twenty (120) days from the approval of this Act. x
x x ." (Emphasis ours)
The Act was approved on August 16, 2000 by former President Joseph E. Estrada. Thus,
petitioner claims, the December 16, 2000 plebiscite was conducted one (1) day late from
the expiration of the 120-day period after the approval of the Act. This 120-day period
having expired without a plebiscite being conducted, the Act itself expired and could no
longer be ratified and approved in the plebiscite held on December 16, 2000.
In its comment, the COMELEC asserts that it scheduled the plebiscite on December 16,
2000 based on the date of the effectivity of the Act. Section 65 of the Act states:
"SECTION 65. Effectivity. — This Act shall take effect upon its publication in at least
two (2) newspapers of general and local circulation."
The law was first published in the August 25, 2000 issue of TODAY a newspaper of general
circulation. Then on September 01, 2000, it was published in a newspaper of local
circulation in the Province of Sorsogon. Thus, the publication of the law was completed on
September 1, 2000, which date, according to the COMELEC, should be the reckoning point
in determining the 120-day period within which to conduct the plebiscite, not from the date
of its approval (August 16, 2000) when the law had not yet been published. The COMELEC
argues that since publication is indispensable for the effectivity of a law, citing the landmark
case of Tañada vs. Tuvera,19 it could only schedule the plebiscite after the Act took effect.
Thus, the COMELEC concludes, the December 16, 2000 plebiscite was well within the 120-
day period from the effectivity of the law on September 1, 2000.
The COMELEC is correct.
In addition, Section 10 of the Code provides:
"SECTION 10. Plebiscite Requirement. — No creation, division, merger, abolition, or
substantial alteration of boundaries of local government units shall take effect unless
approved by a majority of the votes cast in a plebiscite called for the purpose in the
political unit or units directly affected. Such plebiscite shall be conducted by the
Commission on Elections within one hundred twenty (120) days from the date of the
effectivity of the law or ordinance affecting such action, unless said law or ordinance
fixes another date." (Emphasis ours)
Quite plainly, the last sentence of Section 10 mandates that the plebiscite shall be
conducted within 120 days from the date of the effectivity of the law, not from its approval.
While the same provision allows a law or ordinance to fix "another date" for conducting a
plebiscite, still such date must be reckoned from the date of the effectivity of the law.
Consequently, the word "approval" in Section 54 of R.A. No. 8806, which should be read
together with Section 65 (effectivity of the Act) thereof, could only mean "effectivity" as used
and contemplated in Section 10 of the Code. This construction is in accord with the
fundamental rule that all provisions of the laws relating to the same subject should be read
together and reconciled to avoid inconsistency or repugnancy to established jurisprudence.
As we stated in Tañada:
"ARTICLE 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. This Code shall
take effect one year after such publication.
After a careful study of this provision and of the arguments of the parties, both on the
original petition and on the instant motion, we have come to the conclusion, and so
hold, that the clause 'unless it is otherwise provided' refers to the date of effectivity
and not to the requirement of publication itself, which cannot in any event be
omitted. This clause does not mean that the legislature may make the law effective
Josef Elvin Campos
immediately upon approval, or on any other date, without its previous publication."
(Emphasis supplied)
To give Section 54 a literal and strict interpretation would in effect make the Act effective
even before its publication, which scenario is precisely abhorred in Tañada.
Lastly, petitioner alleges that the COMELEC failed to conduct an extensive information
campaign on the proposed Sorsogon cityhood 20 days prior to the scheduled plebiscite as
required by Article 11 (b.4.ii), Rule II of the Rules and Regulations Implementing the Code.
However, no proof whatsoever was presented by petitioner to substantiate his allegation.
Consequently, we sustain the presumption20 that the COMELEC regularly performed or
complied with its duty under the law in conducting the plebiscite.
WHEREFORE, the instant petitions are DISMISSED for lack of merit. Costs against
petitioner.
SO ORDERED.
Aquino v. COMELEC (G.R. No. 189793, 07 April 2010)
G.R. No. 189793 April 7, 2010
SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE
ROBREDO, Petitioners,
vs.
COMMISSION ON ELECTIONS represented by its Chairman JOSE A.R. MELO and its
Commissioners, RENE V. SARMIENTO, NICODEMO T. FERRER, LUCENITO N.
TAGLE, ARMANDO VELASCO, ELIAS R. YUSOPH AND GREGORIO
LARRAZABAL, Respondents.
DECISION
PEREZ, J.:
This case comes before this Court by way of a Petition for Certiorari and Prohibition under
Rule 65 of the Rules of Court. In this original action, petitioners Senator Benigno Simeon C.
Aquino III and Mayor Jesse Robredo, as public officers, taxpayers and citizens, seek the
nullification as unconstitutional of Republic Act No. 9716, entitled "An Act Reapportioning
the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of
Camarines Sur and Thereby Creating a New Legislative District From Such
Reapportionment." Petitioners consequently pray that the respondent Commission on
Elections be restrained from making any issuances and from taking any steps relative to the
implementation of Republic Act No. 9716.
Republic Act No. 9716 originated from House Bill No. 4264, and was signed into law by
President Gloria Macapagal Arroyo on 12 October 2009. It took effect on 31 October 2009,
or fifteen (15) days following its publication in the Manila Standard, a newspaper of general
circulation.1 In substance, the said law created an additional legislative district for the
Province of Camarines Sur by reconfiguring the existing first and second legislative districts
of the province.
Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to have a
population of 1,693,821,2 distributed among four (4) legislative districts in this wise:
District Municipalities/Cities Population
1st District Del Gallego Libmanan 417,304
Ragay Minalabac
Lupi Pamplona
Sipocot Pasacao
Cabusao San Fernando
2nd District Gainza Canaman 474,899
Milaor Camaligan
Naga Magarao
Pili Bombon
Ocampo Calabanga
3rd District Caramoan Sangay 372,548
Garchitorena San Jose
Goa Tigaon
Lagonoy Tinamba
Presentacion Siruma
4th District Iriga Buhi 429,070
Baao Bula
Balatan Nabua
Josef Elvin Campos
Bato
Following the enactment of Republic Act No. 9716, the first and second districts of
Camarines Sur were reconfigured in order to create an additional legislative district for the
province. Hence, the first district municipalities of Libmanan, Minalabac, Pamplona,
Pasacao, and San Fernando were combined with the second district municipalities of Milaor
and Gainza to form a new second legislative district. The following table 3 illustrates the
reapportionment made by Republic Act No. 9716:
District Municipalities/Cities Population
1st District Del Gallego 176,383
Ragay
Lupi
Sipocot
Cabusao
2nd District Libmanan San Fernando 276,777
Minalabac Gainza
Pamplona Milaor
Pasacao
3rd District (formerly 2nd Naga Camaligan 439,043
District) Pili Magarao
Ocampo Bombon
Canaman Calabanga
4th District (formerly 3rd District) Caramoan Sangay 372,548
Garchitorena San Jose
Goa Tigaon
Lagonoy Tinamba
Presentacion Siruma
5th District (formerly 4th District) Iriga Buhi 429,070
Baao Bula
Balatan Nabua
Bato
Republic Act No. 9716 is a well-milled legislation. The factual recitals by both parties of the
origins of the bill that became the law show that, from the filing of House Bill No. 4264 until
its approval by the Senate on a vote of thirteen (13) in favor and two (2) against, the
process progressed step by step, marked by public hearings on the sentiments and position
of the local officials of Camarines Sur on the creation of a new congressional district, as well
as argumentation and debate on the issue, now before us, concerning the stand of the
oppositors of the bill that a population of at least 250,000 is required by the Constitution for
such new district.4
Petitioner Aquino III was one of two senators who voted against the approval of the Bill by
the Senate. His co-petitioner, Robredo, is the Mayor of Naga City, which was a part of the
former second district from which the municipalities of Gainza and Milaor were taken for
inclusion in the new second district. No other local executive joined the two; neither did the
representatives of the former third and fourth districts of the province.
Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs
afoul of the explicit constitutional standard that requires a minimum population of two
hundred fifty thousand (250,000) for the creation of a legislative district. 5 The petitioners
claim that the reconfiguration by Republic Act No. 9716 of the first and second districts of
Camarines Sur is unconstitutional, because the proposed first district will end up with a
population of less than 250,000 or only 176,383.
Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited
250,000 minimum population standard.6 The provision reads:
Article VI
Section 5. (1) x x x x
(2) x x x x
(4) x x x x (Emphasis supplied).
Josef Elvin Campos
The petitioners posit that the 250,000 figure appearing in the above-cited provision is the
minimum population requirement for the creation of a legislative district. 7 The petitioners
theorize that, save in the case of a newly created province, each legislative district created
by Congress must be supported by a minimum population of at least 250,000 in order to be
valid.8 Under this view, existing legislative districts may be reapportioned and severed to
form new districts, provided each resulting district will represent a population of at least
250,000. On the other hand, if the reapportionment would result in the creation of a
legislative seat representing a populace of less than 250,000 inhabitants, the
reapportionment must be stricken down as invalid for non-compliance with the minimum
population requirement.
In support of their theory, the petitioners point to what they claim is the intent of the framers
of the 1987 Constitution to adopt a population minimum of 250,000 in the creation of
additional legislative seats.9 The petitioners argue that when the Constitutional Commission
fixed the original number of district seats in the House of Representatives to two hundred
(200), they took into account the projected national population of fifty five million
(55,000,000) for the year 1986. 10 According to the petitioners, 55 million people represented
by 200 district representatives translates to roughly 250,000 people for every one (1)
representative.11 Thus, the 250,000 population requirement found in Section 5(3), Article VI
of the 1987 Constitution is actually based on the population constant used by the
Constitutional Commission in distributing the initial 200 legislative seats.
Thus did the petitioners claim that in reapportioning legislative districts independently from
the creation of a province, Congress is bound to observe a 250,000 population threshold, in
the same manner that the Constitutional Commission did in the original apportionment.
Verbatim, the submission is that:
1. Republic Act 9716 is unconstitutional because the newly apportioned first district
of Camarines Sur failed to meet the population requirement for the creation of the
legislative district as explicitly provided in Article VI, Section 5, Paragraphs (1) and
(3) of the Constitution and Section 3 of the Ordinance appended thereto; and
2. Republic Act 9716 violates the principle of proportional representation as provided
in Article VI, Section 5 paragraphs (1), (3) and (4) of the Constitution. 12
The provision subject of this case states:
Article VI
Section 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities and the Metropolitan Manila
area in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected through
a party-list system of registered national, regional and sectoral parties or organizations.
(2) x x x x
(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this
section.
On the other hand, the respondents, through the Office of the Solicitor General, seek the
dismissal of the present petition based on procedural and substantive grounds.
On procedural matters, the respondents argue that the petitioners are guilty of two (2) fatal
technical defects: first, petitioners committed an error in choosing to assail the
constitutionality of Republic Act No. 9716 via the remedy of Certiorari and Prohibition under
Rule 65 of the Rules of Court; and second, the petitioners have no locus standi to question
the constitutionality of Republic Act No. 9716.
On substantive matters, the respondents call attention to an apparent distinction between
cities and provinces drawn by Section 5(3), Article VI of the 1987 Constitution. The
respondents concede the existence of a 250,000 population condition, but argue that a plain
and simple reading of the questioned provision will show that the same has no application
with respect to the creation of legislative districts in provinces. 13 Rather, the 250,000
minimum population is only a requirement for the creation of a legislative district in a city.
In sum, the respondents deny the existence of a fixed population requirement for the
reapportionment of districts in provinces. Therefore, Republic Act No. 9716, which only
creates an additional legislative district within the province of Camarines Sur, should be
sustained as a perfectly valid reapportionment law.
We first pass upon the threshold issues.
Josef Elvin Campos
The respondents assert that by choosing to avail themselves of the remedies of Certiorari
and Prohibition, the petitioners have committed a fatal procedural lapse. The respondents
cite the following reasons:
1. The instant petition is bereft of any allegation that the respondents had acted
without or in excess of jurisdiction, or with grave abuse of discretion.1avvphi1
2. The remedy of Certiorari and Prohibition must be directed against a tribunal,
board, officer or person, whether exercising judicial, quasi-judicial, or ministerial
functions. Respondents maintain that in implementing Republic Act No. 9716, they
were not acting as a judicial or quasi-judicial body, nor were they engaging in the
performance of a ministerial act.
3. The petitioners could have availed themselves of another plain, speedy and
adequate remedy in the ordinary course of law. Considering that the main thrust of
the instant petition is the declaration of unconstitutionality of Republic Act No. 9716,
the same could have been ventilated through a petition for declaratory relief, over
which the Supreme Court has only appellate, not original jurisdiction.
The respondents likewise allege that the petitioners had failed to show that they had
sustained, or is in danger of sustaining any substantial injury as a result of the
implementation of Republic Act No. 9716. The respondents, therefore, conclude that the
petitioners lack the required legal standing to question the constitutionality of Republic Act
No. 9716.
This Court has paved the way away from procedural debates when confronted with issues
that, by reason of constitutional importance, need a direct focus of the arguments on their
content and substance.
The Supreme Court has, on more than one occasion, tempered the application of
procedural rules,14 as well as relaxed the requirement of locus standi whenever confronted
with an important issue of overreaching significance to society. 15
Hence, in Del Mar v. Philippine Amusement and Gaming Corporation (PAGCOR) 16 and
Jaworski v. PAGCOR,17 this Court sanctioned momentary deviation from the principle of the
hierarchy of courts, and took original cognizance of cases raising issues of paramount
public importance. The Jaworski case ratiocinates:
Granting arguendo that the present action cannot be properly treated as a petition for
prohibition, the transcendental importance of the issues involved in this case warrants that
we set aside the technical defects and take primary jurisdiction over the petition at bar. One
cannot deny that the issues raised herein have potentially pervasive influence on the social
and moral well being of this nation, specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance with the well-entrenched
principle that rules of procedure are not inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice. Their strict and rigid application, which
would result in technicalities that tend to frustrate, rather than promote substantial justice,
must always be eschewed. (Emphasis supplied)
Anent the locus standi requirement, this Court has already uniformly ruled in Kilosbayan v.
Guingona,18 Tatad v. Executive Secretary,19 Chavez v. Public Estates Authority20 and
Bagong Alyansang Makabayan v. Zamora,21 just to name a few, that absence of direct
injury on the part of the party seeking judicial review may be excused when the latter is able
to craft an issue of transcendental importance. In Lim v. Executive Secretary, 22 this Court
held that in cases of transcendental importance, the cases must be settled promptly and
definitely, and so, the standing requirements may be relaxed. This liberal stance has been
echoed in the more recent decision on Chavez v. Gonzales. 23
Given the weight of the issue raised in the instant petition, the foregoing principles must
apply. The beaten path must be taken. We go directly to the determination of whether or not
a population of 250,000 is an indispensable constitutional requirement for the creation of a
new legislative district in a province.
We deny the petition.
We start with the basics. Any law duly enacted by Congress carries with it the presumption
of constitutionality.24 Before a law may be declared unconstitutional by this Court, there
must be a clear showing that a specific provision of the fundamental law has been violated
or transgressed. When there is neither a violation of a specific provision of the Constitution
nor any proof showing that there is such a violation, the presumption of constitutionality will
prevail and the law must be upheld. To doubt is to sustain. 25
There is no specific provision in the Constitution that fixes a 250,000 minimum population
that must compose a legislative district.
Josef Elvin Campos
As already mentioned, the petitioners rely on the second sentence of Section 5(3), Article VI
of the 1987 Constitution, coupled with what they perceive to be the intent of the framers of
the Constitution to adopt a minimum population of 250,000 for each legislative district.
The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides:
"Each city with a population of at least two hundred fifty thousand, or each province, shall
have at least one representative."
The provision draws a plain and clear distinction between the entitlement of a city to a
district on one hand, and the entitlement of a province to a district on the other. For while a
province is entitled to at least a representative, with nothing mentioned about population, a
city must first meet a population minimum of 250,000 in order to be similarly entitled.
The use by the subject provision of a comma to separate the phrase "each city with a
population of at least two hundred fifty thousand" from the phrase "or each province" point
to no other conclusion than that the 250,000 minimum population is only required for a city,
but not for a province. 26
Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only
for a city to be entitled to a representative, but not so for a province.
The 250,000 minimum population requirement for legislative districts in cities was, in turn,
the subject of interpretation by this Court in Mariano, Jr. v. COMELEC. 27
In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which
was the law that converted the Municipality of Makati into a Highly Urbanized City. As it
happened, Republic Act No. 7854 created an additional legislative district for Makati, which
at that time was a lone district. The petitioners in that case argued that the creation of an
additional district would violate Section 5(3), Article VI of the Constitution, because the
resulting districts would be supported by a population of less than 250,000, considering that
Makati had a total population of only 450,000. The Supreme Court sustained the
constitutionality of the law and the validity of the newly created district, explaining the
operation of the Constitutional phrase "each city with a population of at least two hundred
fifty thousand," to wit:
Petitioners cannot insist that the addition of another legislative district in Makati is not in
accord with section 5(3), Article VI of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty thousand (450,000). Said
section provides, inter alia, that a city with a population of at least two hundred fifty
thousand (250,000) shall have at least one representative. Even granting that the
population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000),
its legislative district may still be increased since it has met the minimum population
requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance
appended to the Constitution provides that a city whose population has increased to more
than two hundred fifty thousand (250,000) shall be entitled to at least one congressional
representative.28 (Emphasis supplied)
The Mariano case limited the application of the 250,000 minimum population requirement
for cities only to its initial legislative district. In other words, while Section 5(3), Article VI of
the Constitution requires a city to have a minimum population of 250,000 to be entitled to a
representative, it does not have to increase its population by another 250,000 to be entitled
to an additional district.
There is no reason why the Mariano case, which involves the creation of an additional
district within a city, should not be applied to additional districts in provinces. Indeed, if an
additional legislative district created within a city is not required to represent a population of
at least 250,000 in order to be valid, neither should such be needed for an additional district
in a province, considering moreover that a province is entitled to an initial seat by the mere
fact of its creation and regardless of its population.
Apropos for discussion is the provision of the Local Government Code on the creation of a
province which, by virtue of and upon creation, is entitled to at least a legislative district.
Thus, Section 461 of the Local Government Code states:
Requisites for Creation. – (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 constant prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office.
Notably, the requirement of population is not an indispensable requirement, but is merely
an alternative addition to the indispensable income requirement.
Josef Elvin Campos
Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the
deliberations on the words and meaning of Section 5 of Article VI.
The whats, whys, and wherefores of the population requirement of "at least two hundred
fifty thousand" may be gleaned from the records of the Constitutional Commission which,
upon framing the provisions of Section 5 of Article VI, proceeded to form an ordinance that
would be appended to the final document. The Ordinance is captioned "APPORTIONING
THE SEATS OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE
PHILIPPINES TO THE DIFFERENT LEGISLATIVE DISTRICTS IN PROVINCES AND
CITIES AND THE METROPOLITAN MANILA AREA." Such records would show that the
250,000 population benchmark was used for the 1986 nationwide apportionment of
legislative districts among provinces, cities and Metropolitan Manila. Simply put, the
population figure was used to determine how many districts a province, city, or Metropolitan
Manila should have. Simply discernible too is the fact that, for the purpose, population had
to be the determinant. Even then, the requirement of 250,000 inhabitants was not taken as
an absolute minimum for one legislative district. And, closer to the point herein at issue, in
the determination of the precise district within the province to which, through the use of the
population benchmark, so many districts have been apportioned, population as a factor
was not the sole, though it was among, several determinants.
From its journal,29 we can see that the Constitutional Commission originally divided the
entire country into two hundred (200) districts, which corresponded to the original number of
district representatives. The 200 seats were distributed by the Constitutional Commission in
this manner: first, one (1) seat each was given to the seventy-three (73) provinces and the
ten (10) cities with a population of at least 250,000; 30 second, the remaining seats were then
redistributed among the provinces, cities and the Metropolitan Area "in accordance with the
number of their inhabitants on the basis of a uniform and progressive ratio." 31 Commissioner
Davide, who later became a Member and then Chief Justice of the Court, explained this in
his sponsorship remark32 for the Ordinance to be appended to the 1987 Constitution:
Commissioner Davide: The ordinance fixes at 200 the number of legislative seats which
are, in turn, apportioned among provinces and cities with a population of at least 250, 000
and the Metropolitan Area in accordance with the number of their respective inhabitants on
the basis of a uniform and progressive ratio. The population is based on the 1986
projection, with the 1980 official enumeration as the point of reckoning. This projection
indicates that our population is more or less 56 million. Taking into account the mandate
that each city with at least 250, 000 inhabitants and each province shall have at least one
representative, we first allotted one seat for each of the 73 provinces, and each one for all
cities with a population of at least 250, 000, which are the Cities of Manila, Quezon, Pasay,
Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga. Thereafter, we
then proceed[ed] to increase whenever appropriate the number of seats for the provinces
and cities in accordance with the number of their inhabitants on the basis of a uniform and
progressive ratio. (Emphasis supplied).
Thus was the number of seats computed for each province and city. Differentiated from this,
the determination of the districts within the province had to consider "all protests and
complaints formally received" which, the records show, dealt with determinants other than
population as already mentioned.
Palawan is a case in point. Journal No. 107 of the Constitutional Commission narrates:
INTERPELLATION OF MR. NOLLEDO:
Mr. Nolledo inquired on the reason for including Puerto Princesa in the northern towns when
it was more affinity with the southern town of Aborlan, Batarasa, Brooke’s Point, Narra,
Quezon and Marcos. He stated that the First District has a greater area than the Second
District. He then queried whether population was the only factor considered by the
Committee in redistricting.
Replying thereto, Mr. Davide explained that the Committee took into account the standards
set in Section 5 of the Article on the Legislative Department, namely: 1) the legislative seats
should be apportioned among the provinces and cities and the Metropolitan Manila area in
accordance with their inhabitants on the basis of a uniform and progressive ratio; and 2) the
legislative district must be compact, adjacent and contiguous.
Mr. Nolledo pointed out that the last factor was not met when Puerto Princesa was included
with the northern towns. He then inquired what is the distance between Puerto Princesa
from San Vicente.
xxxx
Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of 75,480 and based
on the apportionment, its inclusion with the northern towns would result in a combined
population of 265,000 as against only 186,000 for the south. He added that Cuyo and Coron
Josef Elvin Campos
are very important towns in the northern part of Palawan and, in fact, Cuyo was the capital
of Palawan before its transfer to Puerto Princesa. He also pointed out that there are more
potential candidates in the north and therefore if Puerto Princesa City and the towns of
Cuyo and Coron are lumped together, there would be less candidates in the south, most of
whose inhabitants are not interested in politics. He then suggested that Puerto Princesa be
included in the south or the Second District.
Mr. Davide stated that the proposal would be considered during the period of amendments.
He requested that the COMELEC staff study said proposal. 33
"PROPOSED AMENDMENT OF MR. NOLLEDO
On the districting of Palawan, Mr. Nolledo pointed out that it was explained in the
interpellations that District I has a total population of 265,358 including the City of Puerto
Princesa, while the Second District has a total population of 186,733. He proposed,
however, that Puerto Princesa be included in the Second District in order to satisfy the
contiguity requirement in the Constitution considering that said City is nearer the southern
towns comprising the Second District.
In reply to Mr. Monsod’s query, Mr. Nolledo explained that with the proposed transfer of
Puerto Princesa City to the Second District, the First District would only have a total
population of 190,000 while the Second District would have 262,213, and there would be no
substantial changes.
Mr. Davide accepted Mr. Nolledo’s proposal to insert Puerto Princesa City before the
Municipality of Aborlan.
There being no objection on the part of the Members the same was approved by the Body.
APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF PALAWAN
There being no other amendment, on motion of Mr. Davide, there being no objection, the
apportionment and districting for the province of Palawan was approved by the Body. 34
The districting of Palawan disregarded the 250,000 population figure. It was decided by the
importance of the towns and the city that eventually composed the districts.
Benguet and Baguio are another reference point. The Journal further narrates:
At this juncture, Mr. Davide informed the Body that Mr. Regalado made a reservation with
the Committee for the possible reopening of the approval of Region I with respect to
Benguet and Baguio City.
REMARKS OF MR. REGALADO
Mr. Regalado stated that in the formulation of the Committee, Baguio City and Tuba are
placed in one district. He stated that he was toying with the idea that, perhaps as a special
consideration for Baguio because it is the summer capital of the Philippines, Tuba could be
divorced from Baguio City so that it could, by itself, have its own constituency and Tuba
could be transferred to the Second District together with Itogon. Mr. Davide, however,
pointed out that the population of Baguio City is only 141,149.
Mr. Regalado admitted that the regular population of Baguio may be lower during certain
times of the year, but the transient population would increase the population substantially
and, therefore, for purposes of business and professional transactions, it is beyond question
that population-wise, Baguio would more than qualify, not to speak of the official business
matters, transactions and offices that are also there.
Mr. Davide adverted to Director de Lima’s statement that unless Tuba and Baguio City are
united, Tuba will be isolated from the rest of Benguet as the place can only be reached by
passing through Baguio City. He stated that the Committee would submit the matter to the
Body.
Upon inquiry of the Chair whether he is insisting on his amendment, Mr. Regalado stated
that the Body should have a say on the matter and that the considerations he had given are
not on the demographic aspects but on the fact that Baguio City is the summer capital, the
venue and situs of many government offices and functions.
On motion of Mr. Davide, there being no objection, the Body approved the reconsideration
of the earlier approval of the apportionment and districting of Region I, particularly Benguet.
Thereafter, on motion of Mr. Davide, there being no objection, the amendment of Mr.
Regalado was put to a vote. With 14 Members voting in favor and none against, the
amendment was approved by the Body.
Mr. Davide informed that in view of the approval of the amendment, Benguet with Baguio
City will have two seats. The First District shall comprise of the municipalities of Mankayan,
Buguias, Bakun, Kabayan, Kibungan, Bokod, Atok, Kapangan, Tublay, La Trinidad, Sablan,
Itogon and Tuba. The Second District shall comprise of Baguio City alone.
There being no objection, the Body approved the apportionment and districting of Region
I.35
Quite emphatically, population was explicitly removed as a factor.
Josef Elvin Campos
It may be additionally mentioned that the province of Cavite was divided into districts based
on the distribution of its three cities, with each district having a city: one district "supposed to
be a fishing area; another a vegetable and fruit area; and the third, a rice growing area,"
because such consideration "fosters common interests in line with the standard of
compactness."36 In the districting of Maguindanao, among the matters discussed were
"political stability and common interest among the people in the area" and the possibility of
"chaos and disunity" considering the "accepted regional, political, traditional and sectoral
leaders."37 For Laguna, it was mentioned that municipalities in the highland should not be
grouped with the towns in the lowland. For Cebu, Commissioner Maambong proposed that
they should "balance the area and population." 38
Consistent with Mariano and with the framer deliberations on district apportionment, we
stated in Bagabuyo v. COMELEC39 that:
x x x Undeniably, these figures show a disparity in the population sizes of the districts. The
Constitution, however, does not require mathematical exactitude or rigid equality as a
standard in gauging equality of representation. x x x. To ensure quality representation
through commonality of interests and ease of access by the representative to the
constituents, all that the Constitution requires is that every legislative district should
comprise, as far as practicable, contiguous, compact and adjacent territory. (Emphasis
supplied).
This 2008 pronouncement is fresh reasoning against the uncompromising stand of
petitioner that an additional provincial legislative district, which does not have at least a
250,000 population is not allowed by the Constitution.
The foregoing reading and review lead to a clear lesson.
Neither in the text nor in the essence of Section 5, Article VI of the Constitution can, the
petition find support. And the formulation of the Ordinance in the implementation of the
provision, nay, even the Ordinance itself, refutes the contention that a population of 250,000
is a constitutional sine qua non for the formation of an additional legislative district in a
province, whose population growth has increased beyond the 1986 numbers.
Translated in the terms of the present case:
1. The Province of Camarines Sur, with an estimated population of 1,693,821 in
2007 is ─ based on the formula and constant number of 250,000 used by the
Constitutional Commission in nationally apportioning legislative districts among
provinces and cities ─ entitled to two (2) districts in addition to the four (4) that it was
given in the 1986 apportionment. Significantly, petitioner Aquino concedes this
point.40 In other words, Section 5 of Article VI as clearly written allows and does not
prohibit an additional district for the Province of Camarines Sur, such as that
provided for in Republic Act No. 9786;
2. Based on the pith and pitch of the exchanges on the Ordinance on the protests
and complaints against strict conformity with the population standard, and more
importantly based on the final districting in the Ordinance on considerations other
than population, the reapportionment or the recomposition of the first and second
legislative districts in the Province of Camarines Sur that resulted in the creation of a
new legislative district is valid even if the population of the new district is 176,383
and not 250,000 as insisted upon by the petitioners.
3. The factors mentioned during the deliberations on House Bill No. 4264, were:
(a) the dialects spoken in the grouped municipalities;
(b) the size of the original groupings compared to that of the regrouped
municipalities;
(c) the natural division separating the municipality subject of the discussion
from the reconfigured District One; and
(d) the balancing of the areas of the three districts resulting from the
redistricting of Districts One and Two.41
Each of such factors and in relation to the others considered together, with the increased
population of the erstwhile Districts One and Two, point to the utter absence of abuse of
discretion, much less grave abuse of discretion, 42 that would warrant the invalidation of
Republic Act No. 9716.
To be clear about our judgment, we do not say that in the reapportionment of the first and
second legislative districts of Camarines Sur, the number of inhabitants in the resulting
additional district should not be considered. Our ruling is that population is not the only
factor but is just one of several other factors in the composition of the additional district.
Such settlement is in accord with both the text of the Constitution and the spirit of the letter,
so very clearly given form in the Constitutional debates on the exact issue presented by this
petition.1avvphi1
Josef Elvin Campos
WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716 entitled "An Act
Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in
the Province of Camarines Sur and Thereby Creating a New Legislative District From Such
Reapportionment" is a VALID LAW.
SO ORDERED.
Tan v. COMELEC (G.R. No. 73155, 11 July 1986)
G.R. No. 73155 July 11, 1986
PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO
GASTON, CONCHITA MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO
GAMBOA, ALBERTO LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND
CECILIA MAGSAYSAY, petitioners,
vs.
THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS
OCCIDENTAL, respondents.
Gamboa & Hofileña Law Office for petitioners.
ALAMPAY, J.:
Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province
in the Island of Negros to be known as the Province of Negros del Norte, which took effect
on December 3, 1985, Petitioners herein, who are residents of the Province of Negros
Occidental, in the various cities and municipalities therein, on December 23, 1985, filed with
this Court a case for Prohibition for the purpose of stopping respondents Commission on
Elections from conducting the plebiscite which, pursuant to and in implementation of the
aforesaid law, was scheduled for January 3, 1986. Said law provides:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities
of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona;
and Salvador Benedicto, all in the northern portion of the Island of Negros,
are hereby separated from the province to be known as the Province of
Negros del Norte.
SEC. 2. The boundaries of the new province shall be the southern limits of
the City of Silay, the Municipality of Salvador Benedicto and the City of San
Carlos on the south and the territorial limits of the northern portion to the
Island of Negros on the west, north and east, comprising a territory of
4,019.95 square kilometers more or less.
SEC. 3. The seat of government of the new province shall be the City of
Cadiz.
SEC. 4. A plebiscite shall be conducted in the proposed new province which
are the areas affected within a period of one hundred and twenty days from
the approval of this Act. After the ratification of the creation of the Province of
Negros del Norte by a majority of the votes cast in such plebiscite, the
President of the Philippines shall appoint the first officials of the province.
SEC. 5. The Commission on Elections shall conduct and supervise the
plebiscite herein provided, the expenses for which shall be charged to local
funds.
SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24)
Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is
not in complete accord with the Local Government Code as in Article XI,
Section 3 of our Constitution, it is expressly mandated that—
See. 3. No province, city, municipality or barrio may be created, divided,
merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code, and
subject to the approval by a majority of the votes in a plebiscite in the unit or
units affected.
Section 197 of the Local Government Code enumerates the conditions which must exist to
provide the legal basis for the creation of a provincial unit and these requisites are:
SEC. 197. Requisites for Creation. A province may be created if it has a
territory of at least three thousand five hundred square kilometers, a
population of at least five hundred thousand persons, an average estimated
annual income, as certified by the Ministry of Finance, of not less than ten
million pesos for the last three consecutive years, and its creation shall not
reduce the population and income of the mother province or provinces at the
time of said creation to less than the minimum requirements under this
section. The territory need not be contiguous if it comprises two or more
islands.
Josef Elvin Campos
The average estimated annual income shall include the income alloted for
both the general and infrastructural funds, exclusive of trust funds, transfers
and nonrecurring income. (Rollo, p. 6)
Due to the constraints brought about by the supervening Christmas holidays during which
the Court was in recess and unable to timely consider the petition, a supplemental pleading
was filed by petitioners on January 4, 1986, averring therein that the plebiscite sought to be
restrained by them was held on January 3, 1986 as scheduled but that there are still serious
issues raised in the instant case affecting the legality, constitutionality and validity of such
exercise which should properly be passed upon and resolved by this Court.
The plebiscite was confined only to the inhabitants of the territory of Negros del N rte,
namely: the Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava,
Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador
Benedicto. Because of the exclusions of the voters from the rest of the province of Negros
Occidental, petitioners found need to change the prayer of their petition "to the end that the
constitutional issues which they have raised in the action will be ventilated and given final
resolution.'"At the same time, they asked that the effects of the plebiscite which they sought
to stop be suspended until the Supreme Court shall have rendered its decision on the very
fundamental and far-reaching questions that petitioners have brought out.
Acknowledging in their supplemental petition that supervening events rendered moot the
prayer in their initial petition that the plebiscite scheduled for January 3, 1986, be enjoined,
petitioners plead, nevertheless, that-
... a writ of Prohibition be issued, directed to Respondent Commission on
Elections to desist from issuing official proclamation of the results of the
plebiscite held on January 3, 1986.
Finding that the exclusion and non-participation of the voters of the Province
of Negros Occidental other than those living within the territory of the new
province of Negros del Norte to be not in accordance with the Constitution,
that a writ of mandamus be issued, directed to the respondent Commission
on Elections, to schedule the holding of another plebiscite at which all the
qualified voters of the entire Province of Negros Occidental as now existing
shall participate, at the same time making pronouncement that the plebiscite
held on January 3, 1986 has no legal effect, being a patent legal nullity;
And that a similar writ of Prohibition be issued, directed to the respondent
Provincial Treasurer, to desist from ordering the release of any local funds to
answer for expenses incurred in the holding of such plebiscite until ordered
by the Court. (Rollo pp. 9-10).
Petitioners further prayed that the respondent COMELEC hold in abeyance
the issuance of any official proclamation of the results of the aforestated
plebiscite.
During the pendency of this case, a motion that he be allowed to appear as amicus curiae in
this case (dated December 27, 1985 and filed with the Court on January 2, 1986) was
submitted by former Senator Ambrosio Padilla. Said motion was granted in Our resolution of
January 2, 1986.
Acting on the petition, as well as on the supplemental petition for prohibition with preliminary
injunction with prayer for restraining order, the Court, on January 7, 1986 resolved, without
giving due course to the same, to require respondents to comment, not to file a motion to
dismiss. Complying with said resolution, public respondents, represented by the Office of
the Solicitor General, on January 14, 1986, filed their Comment, arguing therein that the
challenged statute.-Batas Pambansa 885, should be accorded the presumption of legality.
They submit that the said law is not void on its face and that the petition does not show a
clear, categorical and undeniable demonstration of the supposed infringement of the
Constitution. Respondents state that the powers of the Batasang-Pambansa to enact the
assailed law is beyond question. They claim that Batas Pambansa Big. 885 does not
infringe the Constitution because the requisites of the Local Government Code have been
complied with. Furthermore, they submit that this case has now become moot and
academic with the proclamation of the new Province of Negros del Norte.
Respondents argue that the remaining cities and municipalities of the Province of Negros
Occidental not included in the area of the new Province of Negros del Norte, de not fall
within the meaning and scope of the term "unit or units affected", as referred to in Section 3
of Art. XI of our Constitution. On this reasoning, respondents maintain that Batas Pambansa
Blg. 885 does not violate the Constitution, invoking and citing the case of Governor Zosimo
Paredes versus the Honorable Executive Secretary to the President, et al. (G.R. No. 55628,
March 2, 1984 (128 SCRA 61), particularly the pronouncements therein, hereunder quoted:
Josef Elvin Campos
1. Admittedly,this is one of those cases where the discretion of the Court is
allowed considerable leeway. There is indeed an element of ambiguity in the
use of the expression 'unit or units affected'. It is plausible to assert as
petitioners do that when certain Barangays are separated from a parent
municipality to form a new one, all the voters therein are affected. It is much
more persuasive, however, to contend as respondents do that the acceptable
construction is for those voters, who are not from the barangays to be
separated, should be excluded in the plebiscite.
2. For one thing, it is in accordance with the settled doctrine that between two
possible constructions, one avoiding a finding of unconstitutionality and the
other yielding such a result, the former is to be preferred. That which will
save, not that which will destroy, commends itself for acceptance. After all,
the basic presumption all these years is one of validity. ...
3. ... Adherence to such philosophy compels the conclusion that when there
are indications that the inhabitants of several barangays are inclined to
separate from a parent municipality they should be allowed to do so. What is
more logical than to ascertain their will in a plebiscite called for that purpose.
It is they, and they alone, who shall constitute the new unit. New
responsibilities will be assumed. New burdens will be imposed. A new
municipal corporation will come into existence. Its birth will be a matter of
choice-their choice. They should be left alone then to decide for themselves.
To allow other voters to participate will not yield a true expression of their will.
They may even frustrate it, That certainly will be so if they vote against it for
selfish reasons, and they constitute the majority. That is not to abide by the
fundamental principle of the Constitution to promote local autonomy, the
preference being for smaller units. To rule as this Tribunal does is to follow an
accepted principle of constitutional construction, that in ascertaining the
meaning of a particular provision that may give rise to doubts, the intent of the
framers and of the people may be gleaned from provisions in pari materia.
Respondents submit that said ruling in the aforecited case applies equally with force in the
case at bar. Respondents also maintain that the requisites under the Local Government
Code (P.D. 337) for the creation of the new province of Negros del Norte have all been duly
complied with, Respondents discredit petitioners' allegations that the requisite area of 3,500
square kilometers as so prescribed in the Local Government Code for a new province to be
created has not been satisfied. Petitioners insist that the area which would comprise the
new province of Negros del Norte, would only be about 2,856.56 square kilometers and
which evidently would be lesser than the minimum area prescribed by the governing statute.
Respondents, in this regard, point out and stress that Section 2 of Batas Pambansa Blg.
885 creating said new province plainly declares that the territorial boundaries of Negros del
Norte comprise an area of 4,019.95 square kilometers, more or less.
As a final argument, respondents insist that instant petition has been rendered moot and
academic considering that a plebiscite has been already conducted on January 3, 1986;
that as a result thereof, the corresponding certificate of canvass indicated that out of
195,134 total votes cast in said plebiscite, 164,734 were in favor of the creation of Negros
del Norte and 30,400 were against it; and because "the affirmative votes cast represented a
majority of the total votes cast in said plebiscite, the Chairman of the Board of Canvassers
proclaimed the new province which shall be known as "Negros del Norte". Thus,
respondents stress the fact that following the proclamation of Negros del Norte province,
the appointments of the officials of said province created were announced. On these
considerations, respondents urge that this case should be dismissed for having been
rendered moot and academic as the creation of the new province is now a "fait accompli."
In resolving this case, it will be useful to note and emphasize the facts which appear to be
agreed to by the parties herein or stand unchallenged.
Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros
Occidental has not disbursed, nor was required to disburse any public funds in connection
with the plebiscite held on January 3, 1986 as so disclosed in the Comment to the Petition
filed by the respondent Provincial Treasurer of Negros Occidental dated January 20, 1986
(Rollo, pp. 36-37). Thus, the prayer of the petitioners that said Provincial Treasurer be
directed by this Court to desist from ordering the release of any public funds on account of
such plebiscite should not longer deserve further consideration.
Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa
Blg. 885 and the creation of the new Province of Negros del Norte, it expressly declared in
Sec. 2 of the aforementioned Parliamentary Bill, the following:
Josef Elvin Campos
Carlos on the South and the natural boundaries of the northern portion of the
Island of Negros on the West, North and East, containing an area of 285,656
hectares more or less. (Emphasis supplied).
However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas
Pambansa Blg. 885, the boundaries of the new Province of Negros del Norte were defined
therein and its boundaries then stated to be as follows:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities
of Calatrava, Toboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona;
and Salvador Benedicto, all in the northern portion of the Island of Negros,
are hereby separated from the Province of Negros Occidental and constituted
into a new province to be known as the Province of Negros del Norte.
Carlos on the south and the territorial limits of the northern portion of the
Island of Negros on the West, North and East, comprising a territory of
4,019.95 square kilometers more or less.
Equally accepted by the parties is the fact that under the certification issued by Provincial
Treasurer Julian L. Ramirez of the Province of Negros Occidental, dated July 16, 1985, it
was therein certified as follows:
xxx xxx xxx
This is to certify that the following cities and municipalities of Negros
Occidental have the land area as indicated hereunder based on the Special
Report No. 3, Philippines 1980, Population, Land Area and Density: 1970,
1975 and 1980 by the National Census and Statistics Office, Manila.
Land Area
(Sq. Km.)
1. Silay City ...................................................................214.8
2. E.B. Magalona............................................................113.3
3. Victorias.....................................................................133.9
4. Manapla......................................................................112.9
5. Cadiz City ..................................................................516.5
6. Sagay .........................................................................389.6
7. Escalante ....................................................................124.0
8. Toboso.......................................................................123.4
9. Calatrava.....................................................................504.5
10. San Carlos City...........................................................451.3
11. Don Salvador Benedicto.................................... (not available)
This certification is issued upon the request of Dr. Patricio Y. Tan for
whatever purpose it may serve him.
(SGD.) JULIAN L. RAMIREZ
Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).
Although in the above certification it is stated that the land area of the relatively new
municipality of Don Salvador Benedicto is not available, it is an uncontradicted fact that the
area comprising Don Salvador municipality, one of the component units of the new
province, was derived from the City of San Carlos and from the Municipality of Calatrava,
Negros Occidental, and added thereto was a portion of about one-fourth the land area of
the town of Murcia, Negros Occidental. It is significant to note the uncontroverted
submission of petitioners that the total land area of the entire municipality of Murcia, Negros
Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total
land area of Murcia that was added to the portions derived from the land area of Calatrava,
Negros Occidental and San Carlos City (Negros Occidental) would constitute, therefore,
only 80.2 square kilometers. This area of 80.2 square kilometers if then added to 2,685.2
square kilometers, representing the total land area of the Cities of Silay, San Carlos and
Cadiz and the Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante,
Taboso and Calatrava, will result in approximately an area of only 2,765.4 square
kilometers using as basis the Special Report, Philippines 1980, Population, Land Area and
Density: 1970, 1975 and 1980 of the National Census and Statistics Office, Manila (see
Exhibit "C", Rollo, p. 90).
No controversion has been made by respondent with respect to the allegations of
petitioners that the original provision in the draft legislation, Parliamentary Bill No. 3644,
reads:
Josef Elvin Campos
SEC. 4. A plebiscite shall be conducted in the areas affected within a period
of one hundred and twenty days from the approval of this Act. After the
ratification of the creation of the Province of Negros del Norte by a majority of
the votes cast in such plebiscite, the President shall appoint the first officials
of the new province.
However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in
the above provision. The statute, as modified, provides that the requisite plebiscite "shall be
conducted in the proposed new province which are the areas affected."
It is this legislative determination limiting the plebiscite exclusively to the cities and towns
which would comprise the new province that is assailed by the petitioners as violative of the
provisions of our Constitution. Petitioners submit that Sec. 3, ART XI thereof, contemplates
a plebiscite that would be held in the unit or units affected by the creation of the new
province as a result of the consequent division of and substantial alteration of the
boundaries of the existing province. In this instance, the voters in the remaining areas of the
province of Negros Occidental should have been allowed to participate in the questioned
plebiscite.
Considering that the legality of the plebiscite itself is challenged for non-compliance with
constitutional requisites, the fact that such plebiscite had been held and a new province
proclaimed and its officials appointed, the case before Us cannot truly be viewed as already
moot and academic. Continuation of the existence of this newly proclaimed province which
petitioners strongly profess to have been illegally born, deserves to be inquired into by this
Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error
should not provide the very excuse for perpetuation of such wrong. For this Court to yield to
the respondents' urging that, as there has been fait accompli then this Court should
passively accept and accede to the prevailing situation is an unacceptable suggestion.
Dismissal of the instant petition, as respondents so propose is a proposition fraught with
mischief. Respondents' submission will create a dangerous precedent. Should this Court
decline now to perform its duty of interpreting and indicating what the law is and should be,
this might tempt again those who strut about in the corridors of power to recklessly and with
ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions,
either brazenly or stealthily, confident that this Court will abstain from entertaining future
challenges to their acts if they manage to bring about a fait accompli.
In the light of the facts and circumstances alluded to by petitioners as attending to the
unusually rapid creation of the instant province of Negros del Norte after a swiftly scheduled
plebiscite, this Tribunal has the duty to repudiate and discourage the commission of acts
which run counter to the mandate of our fundamental law, done by whatever branch of our
government. This Court gives notice that it will not look with favor upon those who may be
hereafter inclined to ram through all sorts of legislative measures and then implement the
same with indecent haste, even if such acts would violate the Constitution and the
prevailing statutes of our land. It is illogical to ask that this Tribunal be blind and deaf to
protests on the ground that what is already done is done. To such untenable argument the
reply would be that, be this so, the Court, nevertheless, still has the duty and right to correct
and rectify the wrong brought to its attention.
On the merits of the case.
Aside from the simpler factual issue relative to the land area of the new province of Negros
del Norte, the more significant and pivotal issue in the present case revolves around in the
interpretation and application in the case at bar of Article XI, Section 3 of the Constitution,
which being brief and for convenience, We again quote:
SEC. 3. No province, city, municipality or barrio may be created, divided,
merged abolished, or its boundary substantially altered, except in accordance
with the criteria established in the local government code, and subject to the
approval by a majority of the votes in a plebiscite in the unit or units affected.
It can be plainly seen that the aforecited constitutional provision makes it imperative that
there be first obtained "the approval of a majority of votes in the plebiscite in the unit or units
affected" whenever a province is created, divided or merged and there is substantial
alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the
existing province of Negros Occidental would necessarily be substantially altered by the
division of its existing boundaries in order that there can be created the proposed new
province of Negros del Norte. Plain and simple logic will demonstrate than that two political
units would be affected. The first would be the parent province of Negros Occidental
because its boundaries would be substantially altered. The other affected entity would be
composed of those in the area subtracted from the mother province to constitute the
proposed province of Negros del Norte.
Josef Elvin Campos
We find no way to reconcile the holding of a plebiscite that should conform to said
constitutional requirement but eliminates the participation of either of these two component
political units. No amount of rhetorical flourishes can justify exclusion of the parent province
in the plebiscite because of an alleged intent on the part of the authors and implementors of
the challenged statute to carry out what is claimed to be a mandate to guarantee and
promote autonomy of local government units. The alleged good intentions cannot prevail
and overrule the cardinal precept that what our Constitution categorically directs to be done
or imposes as a requirement must first be observed, respected and complied with. No one
should be allowed to pay homage to a supposed fundamental policy intended to guarantee
and promote autonomy of local government units but at the same time transgress, ignore
and disregard what the Constitution commands in Article XI Section 3 thereof. Respondents
would be no different from one who hurries to pray at the temple but then spits at the Idol
therein.
We find no merit in the submission of the respondents that the petition should be dismissed
because the motive and wisdom in enacting the law may not be challenged by petitioners.
The principal point raised by the petitioners is not the wisdom and motive in enacting the
law but the infringement of the Constitution which is a proper subject of judicial inquiry.
Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say
the least, are most enlightening and provoking but are factual issues the Court cannot
properly pass upon in this case. Mention by petitioners of the unexplained changes or
differences in the proposed Parliamentary Bill No. 3644 and the enacted Batas Pambansa
Blg. 885; the swift and surreptitious manner of passage and approval of said law; the abrupt
scheduling of the plebiscite; the reference to news articles regarding the questionable
conduct of the said plebiscite held on January 3, 1986; all serve as interesting reading but
are not the decisive matters which should be reckoned in the resolution of this case.
What the Court considers the only significant submissions lending a little support to
respondents' case is their reliance on the rulings and pronouncements made by this Court
in the case of Governor Zosimo Paredes versus The Honorable Executive Secretary to the
President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said case relating to a
plebiscite held to ratify the creation of a new municipality from existing barangays, this Court
upheld the legality of the plebiscite which was participated in exclusively by the people of
the barangay that would constitute the new municipality.
This Court is not unmindful of this solitary case alluded to by respondents. What is,
however, highly significant are the prefatory statements therein stating that said case is
"one of those cases where the discretion of the Court is allowed considerable leeway" and
that "there is indeed an element of ambiguity in the use of the expression unit or units
affected." The ruling rendered in said case was based on a claimed prerogative of the Court
then to exercise its discretion on the matter. It did not resolve the question of how the
pertinent provision of the Constitution should be correctly interpreted.
The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al.
(supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged
therein that "it is plausible to assert, as petitioners do, that when certain Barangays are
separated from a parent municipality to form a new one, all the voters therein are affected."
It is relevant and most proper to mention that in the aforecited case of Paredes vs.
Executive Secretary, invoked by respondents, We find very lucidly expressed the strong
dissenting view of Justice Vicente Abad Santos, a distinguished member of this Court, as
he therein voiced his opinion, which We hereunder quote:
2. ... when the Constitution speaks of "the unit or units affected" it means all
of the people of the municipality if the municipality is to be divided such as in
the case at bar or an of the people of two or more municipalities if there be a
merger. I see no ambiguity in the Constitutional provision.
This dissenting opinion of Justice Vicente Abad Santos is the— forerunner of the ruling
which We now consider applicable to the case at bar, In the analogous case of Emilio C.
Lopez, Jr., versus the Honorable Commission on Elections, L-56022, May 31, 1985, 136
SCRA 633, this dissent was reiterated by Justice Abad Santos as he therein assailed as
suffering from a constitutional infirmity a referendum which did not include all the people of
Bulacan and Rizal, when such referendum was intended to ascertain if the people of said
provinces were willing to give up some of their towns to Metropolitan Manila. His dissenting
opinion served as a useful guideline in the instant case.
Opportunity to re-examine the views formerly held in said cases is now afforded the present
Court. The reasons in the mentioned cases invoked by respondents herein were formerly
considered acceptable because of the views then taken that local autonomy would be better
promoted However, even this consideration no longer retains persuasive value.
Josef Elvin Campos
The environmental facts in the case before Us readily disclose that the subject matter under
consideration is of greater magnitude with concomitant multifarious complicated problems.
In the earlier case, what was involved was a division of a barangay which is the smallest
political unit in the Local Government Code. Understandably, few and lesser problems are
involved. In the case at bar, creation of a new province relates to the largest political unit
contemplated in Section 3, Art. XI of the Constitution. To form the new province of Negros
del Norte no less than three cities and eight municipalities will be subtracted from the parent
province of Negros Occidental. This will result in the removal of approximately 2,768.4
square kilometers from the land area of an existing province whose boundaries will be
consequently substantially altered. It becomes easy to realize that the consequent effects cf
the division of the parent province necessarily will affect all the people living in the separate
areas of Negros Occidental and the proposed province of Negros del Norte. The economy
of the parent province as well as that of the new province will be inevitably affected, either
for the better or for the worse. Whatever be the case, either or both of these political groups
will be affected and they are, therefore, the unit or units referred to in Section 3 of Article XI
of the Constitution which must be included in the plebiscite contemplated therein.
It is a well accepted rule that "in ascertaining the meaning of a particular provision that may
give rise to doubts, the intent of the framers and of the people, may be gleaned from the
provisions in pari materia." Parliamentary Bill No. 3644 which proposed the creation of the
new province of Negros del Norte recites in Sec. 4 thereof that "the plebiscite shall be
conducted in the areas affected within a period of one hundred and twenty days from the
approval of this Act." As this draft legislation speaks of "areas," what was contemplated
evidently are plurality of areas to participate in the plebiscite. Logically, those to be included
in such plebiscite would be the people living in the area of the proposed new province and
those living in the parent province. This assumption will be consistent with the requirements
set forth in the Constitution.
We fail to find any legal basis for the unexplained change made when Parliamentary Bill No.
3644 was enacted into Batas Pambansa Blg. 885 so that it is now provided in said enabling
law that the plebiscite "shall be conducted in the proposed new province which are the
areas affected." We are not disposed to agree that by mere legislative fiat the unit or units
affected referred in the fundamental law can be diminished or restricted by the Batasang
Pambansa to cities and municipalities comprising the new province, thereby ignoring the
evident reality that there are other people necessarily affected.
In the mind of the Court, the change made by those responsible for the enactment of Batas
Pambansa Blg. 885 betrays their own misgivings. They must have entertained
apprehensions that by holding the plebiscite only in the areas of the new proposed
province, this tactic will be tainted with illegality. In anticipation of a possible strong
challenge to the legality of such a plebiscite there was, therefore, deliberately added in the
enacted statute a self-serving phrase that the new province constitutes the area affected.
Such additional statement serves no useful purpose for the same is misleading, erroneous
and far from truth. The remaining portion of the parent province is as much an area
affected. The substantial alteration of the boundaries of the parent province, not to mention
the other adverse economic effects it might suffer, eloquently argue the points raised by the
petitioners.
Petitioners have averred without contradiction that after the creation of Negros del Norte,
the province of Negros Occidental would be deprived of the long established Cities of Silay,
Cadiz, and San Carlos, as well as the municipality of Victorias. No controversion has been
made regarding petitioners' assertion that the areas of the Province of Negros Occidental
will be diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills
which contribute to the economy of the whole province. In the language of petitioners, "to
create Negros del Norte, the existing territory and political subdivision known as Negros
Occidental has to be partitioned and dismembered. What was involved was no 'birth' but
"amputation." We agree with the petitioners that in the case of Negros what was involved
was a division, a separation; and consequently, as Sec. 3 of Article XI of the Constitution
anticipates, a substantial alteration of boundary.
As contended by petitioners,—
Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the
constitutional provision do not contemplate distinct situation isolated from the
mutually exclusive to each other. A Province maybe created where an
existing province is divided or two provinces merged. Such cases necessarily
will involve existing unit or units abolished and definitely the boundary being
substantially altered.
Josef Elvin Campos
It would thus be inaccurate to state that where an existing political unit is
divided or its boundary substantially altered, as the Constitution provides,
only some and not all the voters in the whole unit which suffers
dismemberment or substantial alteration of its boundary are affected. Rather,
the contrary is true.
It is also Our considered view that even hypothetically assuming that the merits of this case
can depend on the mere discretion that this Court may exercise, nevertheless, it is the
petitioners' case that deserve to be favored.
It is now time for this Court to set aside the equivocations and the indecisive
pronouncements in the adverted case of Paredes vs. the Honorable Executive Secretary, et
al. (supra). For the reasons already here express, We now state that the ruling in the two
mentioned cases sanctioning the exclusion of the voters belonging to an existing political
unit from which the new political unit will be derived, from participating in the plebiscite
conducted for the purpose of determining the formation of another new political unit, is
hereby abandoned.
In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a
writ of mandamus be issued, directing the respondent Commission on Elections, to
schedule the holding of another plebiscite at which all the qualified voters of the entire
province of Negros Occidental as now existing shall participate and that this Court make a
pronouncement that the plebiscite held on January 3, 1986 has no legal effect for being a
patent nullity.
The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and
void and violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not,
however, disposed to direct the conduct of a new plebiscite, because We find no legal basis
to do so. With constitutional infirmity attaching to the subject Batas Pambansa Big. 885 and
also because the creation of the new province of Negros del Norte is not in accordance with
the criteria established in the Local Government Code, the factual and legal basis for the
creation of such new province which should justify the holding of another plebiscite does not
exist.
Whatever claim it has to validity and whatever recognition has been gained by the new
province of Negros del Norte because of the appointment of the officials thereof, must now
be erased. That Negros del Norte is but a legal fiction should be announced. Its existence
should be put to an end as quickly as possible, if only to settle the complications currently
attending to its creation. As has been manifested, the parent province of Negros del Norte
has been impleaded as the defendant in a suit filed by the new Province of Negros del
Norte, before the Regional Trial Court of Negros (del Norte), docketed as Civil Case No.
169-C, for the immediate allocation, distribution and transfer of funds by the parent province
to the new province, in an amount claimed to be at least P10,000,000.00.
The final nail that puts to rest whatever pretension there is to the legality of the province of
Negros del Norte is the significant fact that this created province does not even satisfy the
area requirement prescribed in Section 197 of the Local Government Code, as earlier
discussed.
It is of course claimed by the respondents in their Comment to the exhibits submitted by the
petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of
4,019.95 square kilometers, more or less. This assertion is made to negate the proofs
submitted, disclosing that the land area of the new province cannot be more than 3,500
square kilometers because its land area would, at most, be only about 2,856 square
kilometers, taking into account government statistics relative to the total area of the cities
and municipalities constituting Negros del Norte. Respondents insist that when Section 197
of the Local Government Code speaks of the territory of the province to be created and
requires that such territory be at least 3,500 square kilometers, what is contemplated is not
only the land area but also the land and water over which the said province has jurisdiction
and control. It is even the submission of the respondents that in this regard the marginal sea
within the three mile limit should be considered in determining the extent of the territory of
the new province. Such an interpretation is strained, incorrect, and fallacious.
The last sentence of the first paragraph of Section 197 is most revealing. As so stated
therein the "territory need not be contiguous if it comprises two or more islands." The use of
the word territory in this particular provision of the Local Government Code and in the very
last sentence thereof, clearly reflects that "territory" as therein used, has reference only to
the mass of land area and excludes the waters over which the political unit exercises
control.
Said sentence states that the "territory need not be contiguous." Contiguous means (a) in
physical contact; (b) touching along all or most of one side; (c) near, text, or adjacent
Josef Elvin Campos
(Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an
adjective, as in the above sentence, is only used when it describes physical contact, or a
touching of sides of two solid masses of matter. The meaning of particular terms in a statute
may be ascertained by reference to words associated with or related to them in the statute
(Animal Rescue League vs. Assessors, 138 A.L.R. p. 110). Therefore, in the context of the
sentence above, what need not be "contiguous" is the "territory" the physical mass of land
area. There would arise no need for the legislators to use the word contiguous if they had
intended that the term "territory" embrace not only land area but also territorial waters. It can
be safely concluded that the word territory in the first paragraph of Section 197 is meant to
be synonymous with "land area" only. The words and phrases used in a statute should be
given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the
words are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p.
664).
The distinction between "territory" and "land area" which respondents make is an artificial or
strained construction of the disputed provision whereby the words of the statute are
arrested from their plain and obvious meaning and made to bear an entirely different
meaning to justify an absurd or unjust result. The plain meaning in the language in a statute
is the safest guide to follow in construing the statute. A construction based on a forced or
artificial meaning of its words and out of harmony of the statutory scheme is not to be
favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).
It would be rather preposterous to maintain that a province with a small land area but which
has a long, narrow, extended coast line, (such as La Union province) can be said to have a
larger territory than a land-locked province (such as Ifugao or Benguet) whose land area
manifestly exceeds the province first mentioned.
Allegations have been made that the enactment of the questioned state was marred by
"dirty tricks", in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste"
pursuant to sinister designs to achieve "pure and simple gerrymandering; "that recent
happenings more than amply demonstrate that far from guaranteeing its autonomy it
(Negros del Norte) has become the fiefdom of a local strongman" (Rollo, p. 43; emphasis
supplied).
It is not for this Court to affirm or reject such matters not only because the merits of this
case can be resolved without need of ascertaining the real motives and wisdom in the
making of the questioned law. No proper challenge on those grounds can also be made by
petitioners in this proceeding. Neither may this Court venture to guess the motives or
wisdom in the exercise of legislative powers. Repudiation of improper or unwise actions
taken by tools of a political machinery rests ultimately, as recent events have shown, on the
electorate and the power of a vigilant people.
Petitioners herein deserve and should receive the gratitude of the people of the Province of
Negros Occidental and even by our Nation. Commendable is the patriotism displayed by
them in daring to institute this case in order to preserve the continued existence of their
historic province. They were inspired undoubtedly by their faithful commitment to our
Constitution which they wish to be respected and obeyed. Despite the setbacks and the
hardships which petitioners aver confronted them, they valiantly and unfalteringly pursued a
worthy cause. A happy destiny for our Nation is assured as long as among our people there
would be exemplary citizens such as the petitioners herein.
WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The
proclamation of the new province of Negros del Norte, as well as the appointment of the
officials thereof are also declared null and void.
SO ORDERED.
Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras, JJ., concur.
Melencio-Herrera, J., concurs in the result.
Separate Opinions
TEEHANKEE, C.J., concurring:
I congratulate my brethren for the unanimous decision we issue today striking down an Act
approved in "deep secrecy and inordinate haste" apparently on the last day of session of
the Batasang Pambansa on December 3, 1985 and signed on the same day by the then
President of the authoritarian regime. The Act provided for the partitioning of the province of
Negros Occidental and would substantially alter its boundaries by lopping off the
progressive cities of Silay, Cadiz and San Carlos and municipality of Victorias with seven
other municipalities to constitute the proposed new province of Negros del Norte. Negros
Josef Elvin Campos
Occidental would thereby lose 4,019.95 square kilometers in area and seven of fifteen
sugar mills which contribute to the economic progress and welfare of the whole province.
The discredited Commission on Elections of the time played its customary subservient role
by setting the plebiscite with equal "indecent haste" for January 3, 1986, notwithstanding
that the Act itself provided for an ample period of 120 days from its approval within which to
inform the people of the proposed dismemberment and allow them to freely express and
discuss the momentous issue and cast their vote intelligently. This was learned by
petitioners through an item in the printed media one day before they filed the present rush
petition on December 23, 1985 to seek a restraining order to atop the plebiscite, even as no
printed copies of the Act as finally enacted and approved were available to them and the
Act had not been published, as required by law, for its effectivity. As petitioners ruefully
state: "it was in vain hope" for everything had apparently been timed for the Christmas
holidays; the Court was in Christmas recess and "there was no chance to have their plea for
a restraining order acted upon speedily enough." In fact, it was only on January 7, 1986 that
the Court took cognizance of the petition and required respondents' comment.
The scenario, as petitioners urgently asserted, was "to have the creation of the new
Province a fait accompli by the time elections are held on February 7, 1986. The
transparent purpose is unmistakably so that the new Governor and other officials shall by
then have been installed in office, ready to function for purposes of the election for
President and Vice-President." Thus, the petitioners reported after the event: "With indecent
haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President
Marcos as in existence; a new set of government officials headed by Governor Armando
Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the
political machinery was in place to deliver the 'solid North' to ex-President Marcos. The rest
is history. What happened in Negros del Norte during the elections-the unashamed use of
naked power and resources contributed in no small way to arousing 'people's power' and
steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud
to be a Filipino today. (Record, pp. 9, 41).
The challenged Act is manifestly void and unconstitutional. Consequently, all the
implementing acts complained of, viz. the plebiscite, the proclamation of a new province of
Negros del Norte and the appointment of its officials are equally void. The limited holding of
the plebiscite only in the areas of the proposed new province (as provided by Section 4 of
the Act) to the exclusion of the voters of the remaining areas of the integral province of
Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the
Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran,
Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and
Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI,
section 3 of the then prevailing 1973 Constitution that no province may be created or
divided or its boundary substantially altered without "the approval of a majority of the votes
in a plebiscite in the unit or units affected." It is plain that all the cities and municipalities of
the province of Negros Occidental, not merely those of the proposed new province,
comprise the units affected. It follows that the voters of the whole and entire province of
Negros Occidental have to participate and give their approval in the plebiscite, because the
whole province is affected by its proposed division and substantial alteration of its boundary.
To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the
province is as absurd and illogical as allowing only the secessionists to vote for the
secession that they demanded against the wishes of the majority and to nullify the basic
principle of majority rule.
The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held
and can no longer be enjoined and that the new province of Negros del Norte has been
constituted, begs the issue of invalidity of the challenged Act. This Court has always held
that it "does not look with favor upon parties 'racing to beat an injunction or restraining order'
which they have reason to believe might be forthcoming from the Court by virtue of the filing
and pendency of the appropriate petition therefor. Where the restraining order or preliminary
injunction are found to have been properly issued, as in the case at bar, mandatory
writs shall be issued by the Court to restore matters to the status quo ante." (Banzon v.
Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case, there was somehow a failure to
properly issue the restraining order stopping the holding of the illegal plebiscite, the Court
will issue the mandatory writ or judgment to restore matters to the status quo ante and
restore the territorial integrity of the province of Negros Occidental by declaring the
unconstitutionality of the challenged Act and nullifying the invalid proclamation of the
proposed new province of Negros del Norte and the equally invalid appointment of its
officials.
Josef Elvin Campos
Separate Opinions
TEEHANKEE, C.J., concurring:
I congratulate my brethren for the unanimous decision we issue today striking down an Act
approved in "deep secrecy and inordinate haste" apparently on the last day of session of
the Batasang Pambansa on December 3, 1985 and signed on the same day by the then
President of the authoritarian regime. The Act provided for the partitioning of the province of
Negros Occidental and would substantially alter its boundaries by lopping off the
progressive cities of Silay, Cadiz and San Carlos and municipality of Victorias with seven
other municipalities to constitute the proposed new province of Negros del Norte. Negros
Occidental would thereby lose 4,019.95 square kilometers in area and seven of fifteen
sugar mills which contribute to the economic progress and welfare of the whole province.
The discredited Commission on Elections of the time played its customary subservient role
by setting the plebiscite with equal "indecent haste" for January 3, 1986, notwithstanding
that the Act itself provided for an ample period of 120 days from its approval within which to
inform the people of the proposed dismemberment and allow them to freely express and
discuss the momentous issue and cast their vote intelligently. This was learned by
petitioners through an item in the printed media one day before they filed the present rush
petition on December 23, 1985 to seek a restraining order to atop the plebiscite, even as no
printed copies of the Act as finally enacted and approved were available to them and the
Act had not been published, as required by law, for its effectivity. As petitioners ruefully
state: "it was in vain hope" for everything had apparently been timed for the Christmas
holidays; the Court was in Christmas recess and "there was no chance to have their plea for
a restraining order acted upon speedily enough." In fact, it was only on January 7, 1986 that
the Court took cognizance of the petition and required respondents' comment.
The scenario, as petitioners urgently asserted, was "to have the creation of the new
Province a fait accompli by the time elections are held on February 7, 1986. The
transparent purpose is unmistakably so that the new Governor and other officials shall by
then have been installed in office, ready to function for purposes of the election for
President and Vice-President." Thus, the petitioners reported after the event: "With indecent
haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President
Marcos as in existence; a new set of government officials headed by Governor Armando
Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the
political machinery was in place to deliver the 'solid North' to ex-President Marcos. The rest
is history. What happened in Negros del Norte during the elections-the unashamed use of
naked power and resources contributed in no small way to arousing 'people's power' and
steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud
to be a Filipino today. (Record, pp. 9, 41).
The challenged Act is manifestly void and unconstitutional. Consequently, all the
implementing acts complained of, viz. the plebiscite, the proclamation of a new province of
Negros del Norte and the appointment of its officials are equally void. The limited holding of
the plebiscite only in the areas of the proposed new province (as provided by Section 4 of
the Act) to the exclusion of the voters of the remaining areas of the integral province of
Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the
Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran,
Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and
Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI,
section 3 of the then prevailing 1973 Constitution that no province may be created or
divided or its boundary substantially altered without "the approval of a majority of the votes
in a plebiscite in the unit or units affected." It is plain that all the cities and municipalities of
the province of Negros Occidental, not merely those of the proposed new province,
comprise the units affected. It follows that the voters of the whole and entire province of
Negros Occidental have to participate and give their approval in the plebiscite, because the
whole province is affected by its proposed division and substantial alteration of its boundary.
To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the
province is as absurd and illogical as allowing only the secessionists to vote for the
secession that they demanded against the wishes of the majority and to nullify the basic
principle of majority rule.
The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held
and can no longer be enjoined and that the new province of Negros del Norte has been
constituted, begs the issue of invalidity of the challenged Act. This Court has always held
that it "does not look with favor upon parties 'racing to beat an injunction or restraining order'
which they have reason to believe might be forthcoming from the Court by virtue of the filing
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and pendency of the appropriate petition therefor. Where the restraining order or preliminary
injunction are found to have been properly issued, as in the case at bar, mandatory
writs shall be issued by the Court to restore matters to the status quo ante." (Banzon v.
Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case, there was somehow a failure to
properly issue the restraining order stopping the holding of the illegal plebiscite, the Court
will issue the mandatory writ or judgment to restore matters to the status quo ante and
restore the territorial integrity of the province of Negros Occidental by declaring the
unconstitutionality of the challenged Act and nullifying the invalid proclamation of the
proposed new province of Negros del Norte and the equally invalid appointment of its
officials.
B. Principles of Local Autonomy
1. Principle of Local Authority (Section 25, Article II and Section 2, Article X

of the 1987 Constitution)
Cases:
Basco v. PAGCOR (G.R. No. 91649, May 14, 1991)
G.R. No. 91649 May 14, 1991
ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND
LORENZO SANCHEZ, petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.
H.B. Basco & Associates for petitioners.
Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR.
PARAS, J.:
A TV ad proudly announces:
"The new PAGCOR — responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant petition seeking to
annul the Philippine Amusement and Gaming Corporation (PAGCOR) Charter — PD 1869,
because it is allegedly contrary to morals, public policy and order, and because —
A. It constitutes a waiver of a right prejudicial to a third person with a right recognized
by law. It waived the Manila City government's right to impose taxes and license
fees, which is recognized by law;
B. For the same reason stated in the immediately preceding paragraph, the law has
intruded into the local government's right to impose local taxes and license fees.
This, in contravention of the constitutionally enshrined principle of local autonomy;
C. It violates the equal protection clause of the constitution in that it legalizes
PAGCOR — conducted gambling, while most other forms of gambling are outlawed,
together with prostitution, drug trafficking and other vices;
D. It violates the avowed trend of the Cory government away from monopolistic and
crony economy, and toward free enterprise and privatization. (p. 2, Amended
Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the
declared national policy of the "new restored democracy" and the people's will as expressed
in the 1987 Constitution. The decree is said to have a "gambling objective" and therefore is
contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of
Article XIV, of the present Constitution (p. 3, Second Amended Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner
Basco being also the Chairman of the Committee on Laws of the City Council of Manila),
can question and seek the annulment of PD 1869 on the alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of
P.D. 1067-A dated January 1, 1977 and was granted a franchise under P.D. 1067-B also
dated January 1, 1977 "to establish, operate and maintain gambling casinos on land or
water within the territorial jurisdiction of the Philippines." Its operation was originally
conducted in the well known floating casino "Philippine Tourist." The operation was
considered a success for it proved to be a potential source of revenue to fund infrastructure
and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to
fully attain this objective.
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Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the
Government to regulate and centralize all games of chance authorized by existing franchise
or permitted by law, under the following declared policy —
Sec. 1. Declaration of Policy. — It is hereby declared to be the policy of the State to
centralize and integrate all games of chance not heretofore authorized by existing
franchises or permitted by law in order to attain the following objectives:
(a) To centralize and integrate the right and authority to operate and conduct games
of chance into one corporate entity to be controlled, administered and supervised by
the Government.
(b) To establish and operate clubs and casinos, for amusement and recreation,
including sports gaming pools, (basketball, football, lotteries, etc.) and such other
forms of amusement and recreation including games of chance, which may be
allowed by law within the territorial jurisdiction of the Philippines and which will: (1)
generate sources of additional revenue to fund infrastructure and socio-civic
projects, such as flood control programs, beautification, sewerage and sewage
projects, Tulungan ng Bayan Centers, Nutritional Programs, Population Control and
such other essential public services; (2) create recreation and integrated facilities
which will expand and improve the country's existing tourist attractions; and (3)
minimize, if not totally eradicate, all the evils, malpractices and corruptions that are
normally prevalent on the conduct and operation of gambling clubs and casinos
without direct government involvement. (Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines.
Under its Charter's repealing clause, all laws, decrees, executive orders, rules and
regulations, inconsistent therewith, are accordingly repealed, amended or modified.
It is reported that PAGCOR is the third largest source of government revenue, next to the
Bureau of Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned
P3.43 Billion, and directly remitted to the National Government a total of P2.5 Billion in form
of franchise tax, government's income share, the President's Social Fund and Host Cities'
share. In addition, PAGCOR sponsored other socio-cultural and charitable projects on its
own or in cooperation with various governmental agencies, and other private associations
and organizations. In its 3 1/2 years of operation under the present administration,
PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989,
PAGCOR was employing 4,494 employees in its nine (9) casinos nationwide, directly
supporting the livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same
is "null and void" for being "contrary to morals, public policy and public order," monopolistic
and tends toward "crony economy", and is violative of the equal protection clause and local
autonomy as well as for running counter to the state policies enunciated in Sections 11
(Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth) of Article II,
Section 1 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of
the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most
deliberate consideration by the Court, involving as it does the exercise of what has been
described as "the highest and most delicate function which belongs to the judicial
department of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146
SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-equal and coordinate
branch of the government We need not be reminded of the time-honored principle, deeply
ingrained in our jurisprudence, that a statute is presumed to be valid. Every presumption
must be indulged in favor of its constitutionality. This is not to say that We approach Our
task with diffidence or timidity. Where it is clear that the legislature or the executive for that
matter, has over-stepped the limits of its authority under the constitution, We should not
hesitate to wield the axe and let it fall heavily, as fall it must, on the offending statute
(Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice
Zaldivar underscored the —
. . . thoroughly established principle which must be followed in all cases where
questions of constitutionality as obtain in the instant cases are involved. 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 basis; that the courts are not concerned with the
Josef Elvin Campos
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.
(Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660,
663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta
v. Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes,
125 SCRA 220, 241-242 [1983] cited in Citizens Alliance for Consumer Protection v.
Energy Regulatory Board, 162 SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are questioning the legal
personality of petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and in keeping with
the Court's duty, under the 1987 Constitution, to determine whether or not the other
branches of government have kept themselves within the limits of the Constitution and the
laws and that they have not abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance of this petition. (Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in the cases
before us, We hold that the same is satisfied by the petitioners and intervenors
because each of them has sustained or is in danger of sustaining an immediate
injury as a result of the acts or measures complained of. And even if, strictly
speaking they are not covered by the definition, it is still within the wide discretion of
the Court to waive the requirement and so remove the impediment to its addressing
and resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed
to question the constitutionality of several executive orders issued by President
Quirino although they were involving only an indirect and general interest shared in
common with the public. The Court dismissed the objection that they were not proper
parties and ruled that "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." We have since then applied the exception in many other
cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition
of gambling does not mean that the Government cannot regulate it in the exercise of its
police power.
The concept of police power is well-established in this jurisdiction. It has been defined as
the "state authority to enact legislation that may interfere with personal liberty or property in
order to promote the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it
consists of (1) an imposition or restraint upon liberty or property, (2) in order to foster the
common good. It is not capable of an exact definition but has been, purposely, veiled in
general terms to underscore its all-comprehensive embrace. (Philippine Association of
Service Exporters, Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future
where it could be done, provides enough room for an efficient and flexible response to
conditions and circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to
the charter. Along with the taxing power and eminent domain, it is inborn in the very fact of
statehood and sovereignty. It is a fundamental attribute of government that has enabled it to
perform the most vital functions of governance. Marshall, to whom the expression has been
credited, refers to it succinctly as the plenary power of the state "to govern its citizens".
(Tribe, American Constitutional Law, 323, 1978). The police power of the State is a power
co-extensive with self-protection and is most aptly termed the "law of overwhelming
necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential,
insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a
dynamic force that enables the state to meet the agencies of the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize
thru an appropriate institution all games of chance authorized by existing franchise or
permitted by law" (1st whereas clause, PD 1869). As was subsequently proved, regulating
and centralizing gambling operations in one corporate entity — the PAGCOR, was
beneficial not just to the Government but to society in general. It is a reliable source of much
needed revenue for the cash strapped Government. It provided funds for social impact
projects and subjected gambling to "close scrutiny, regulation, supervision and control of the
Josef Elvin Campos
Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct
intervention of the Government, the evil practices and corruptions that go with gambling will
be minimized if not totally eradicated. Public welfare, then, lies at the bottom of the
enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to
impose taxes and legal fees; that the exemption clause in P.D. 1869 is violative of the
principle of local autonomy. They must be referring to Section 13 par. (2) of P.D. 1869
which exempts PAGCOR, as the franchise holder from paying any "tax of any kind or form,
income or otherwise, as well as fees, charges or levies of whatever nature, whether
National or Local."
(2) Income and other taxes. — a) Franchise Holder: No tax of any kind or form,
income or otherwise as well as fees, charges or levies of whatever nature, whether
National or Local, shall be assessed and collected under this franchise from the
Corporation; nor shall any form or tax or charge attach in any way to the earnings of
the Corporation, except a franchise tax of five (5%) percent of the gross revenues or
earnings derived by the Corporation from its operations under this franchise. Such
tax shall be due and payable quarterly to the National Government and shall be in
lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or
description, levied, established or collected by any municipal, provincial or national
government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose
taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos
v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly show
an intent to confer that power or the municipality cannot assume it" (Medina v. City of
Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield to a legislative act
which is superior having been passed upon by the state itself which has the "inherent power
to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445).
(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed
that "municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No.
7909, January 18, 1957) which has the power to "create and abolish municipal
corporations" due to its "general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67;
Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control over
Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if Congress can
grant the City of Manila the power to tax certain matters, it can also provide for exemptions
or even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has long been revoked.
As early as 1975, the power of local governments to regulate gambling thru the grant of
"franchise, licenses or permits" was withdrawn by P.D. No. 771 and was vested exclusively
on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority of
chartered cities and other local governments to issue license, permit or other form of
franchise to operate, maintain and establish horse and dog race tracks, jai-alai and
other forms of gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse
and dog race tracks, jai-alai and other forms of gambling shall be issued by the
national government upon proper application and verification of the qualification of
the applicant . . .
Therefore, only the National Government has the power to issue "licenses or permits" for
the operation of gambling. Necessarily, the power to demand or collect license fees which is
a consequence of the issuance of "licenses or permits" is no longer vested in the City of
Manila.
(d) Local governments have no power to tax instrumentalities of the National Government.
PAGCOR is a government owned or controlled corporation with an original charter, PD
1869. All of its shares of stocks are owned by the National Government. In addition to its
corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers thus:
Sec. 9. Regulatory Power. — The Corporation shall maintain a Registry of the
affiliated entities, and shall exercise all the powers, authority and the responsibilities
vested in the Securities and Exchange Commission over such affiliating entities
mentioned under the preceding section, including, but not limited to amendments of
Articles of Incorporation and By-Laws, changes in corporate term, structure,
capitalization and other matters concerning the operation of the affiliated entities, the
Josef Elvin Campos
provisions of the Corporation Code of the Philippines to the contrary notwithstanding,
except only with respect to original incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is
governmental, which places it in the category of an agency or instrumentality of the
Government. Being an instrumentality of the Government, PAGCOR should be and actually
is exempt from local taxes. Otherwise, its operation might be burdened, impeded or
subjected to control by a mere Local government.
The states have no power by taxation or otherwise, to retard, impede, burden or in
any manner control the operation of constitutional laws enacted by Congress to carry
into execution the powers vested in the federal government. (MC Culloch v. Marland,
4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local
governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire
absence of power on the part of the States to touch, in that way (taxation) at least,
the instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it
can be agreed that no state or political subdivision can regulate a federal
instrumentality in such a way as to prevent it from consummating its federal
responsibilities, or even to seriously burden it in the accomplishment of them.
(Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of
what local authorities may perceive to be undesirable activities or enterprise using the
power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc
Culloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the
very entity which has the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be
violated by P.D. 1869. This is a pointless argument. Article X of the 1987 Constitution (on
Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own source of
revenue and to levy taxes, fees, and other charges subject to such guidelines and
limitation as the congress may provide, consistent with the basic policy on local
autonomy. Such taxes, fees and charges shall accrue exclusively to the local
government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always subject to "limitations"
which Congress may provide by law. Since PD 1869 remains an "operative" law until
"amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption
clause" remains as an exception to the exercise of the power of local governments to
impose taxes and fees. It cannot therefore be violative but rather is consistent with the
principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means
"decentralization" (III Records of the 1987 Constitutional Commission, pp. 435-436, as cited
in Bernas, The Constitution of the Republic of the Philippines, Vol. II, First Ed., 1988, p.
374). It does not make local governments sovereign within the state or an "imperium in
imperio."
Local Government has been described as a political subdivision of a nation or state
which is constituted by law and has substantial control of local affairs. In a unitary
system of government, such as the government under the Philippine Constitution,
local governments can only be an intra sovereign subdivision of one sovereign
nation, it cannot be an imperium in imperio. Local government in such a system can
only mean a measure of decentralization of the function of government. (emphasis
supplied)
As to what state powers should be "decentralized" and what may be delegated to local
government units remains a matter of policy, which concerns wisdom. It is therefore a
political question. (Citizens Alliance for Consumer Protection v. Energy Regulatory Board,
162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is
a State concern and hence, it is the sole prerogative of the State to retain it or delegate it to
local governments.
As gambling is usually an offense against the State, legislative grant or express
charter power is generally necessary to empower the local corporation to deal with
the subject. . . . In the absence of express grant of power to enact, ordinance
provisions on this subject which are inconsistent with the state laws are void . (Ligan
Josef Elvin Campos
v. Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757
following in re Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as
cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)
Petitioners next contend that P.D. 1869 violates the equal protection clause of the
Constitution, because "it legalized PAGCOR — conducted gambling, while most gambling
are outlawed together with prostitution, drug trafficking and other vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores
the well-accepted meaning of the clause "equal protection of the laws." The clause does not
preclude classification of individuals who may be accorded different treatment under the law
as long as the classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101
Phil. 1155). A law does not have to operate in equal force on all persons or things to be
conformable to Article III, Section 1 of the Constitution (DECS v. San Diego, G.R. No.
89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing classes of
individuals or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G.
2847). The Constitution does not require situations which are different in fact or opinion to
be treated in law as though they were the same (Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal
protection is not clearly explained in the petition. The mere fact that some gambling
activities like cockfighting (P.D 449) horse racing (R.A. 306 as amended by RA 983),
sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) are legalized under
certain conditions, while others are prohibited, does not render the applicable laws, P.D.
1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be overthrown
because there are other instances to which it might have been applied. (Gomez v.
Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that all
occupations called by the same name must be treated the same way; the state may
do what it can to prevent which is deemed as evil and stop short of those cases in
which harm to the few concerned is not less than the harm to the public that would
insure if the rule laid down were made mathematically exact. (Dominican Hotel v.
Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory
Government away from monopolies and crony economy and toward free enterprise and
privatization" suffice it to state that this is not a ground for this Court to nullify P.D. 1869. If,
indeed, PD 1869 runs counter to the government's policies then it is for the Executive
Department to recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare what the law
is and not what the law should be.1âwphi1 Under our system of government, policy
issues are within the domain of the political branches of government and of the
people themselves as the repository of all state power. (Valmonte v. Belmonte, Jr.,
170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:
Sec. 19. The State shall regulate or prohibit monopolies when public interest so
requires. No combinations in restraint of trade or unfair competition shall be allowed.
(Art. XII, National Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not necessarily
prohibited by the Constitution. The state must still decide whether public interest demands
that monopolies be regulated or prohibited. Again, this is a matter of policy for the
Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12
(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and
Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also
that these are merely statements of principles and, policies. As such, they are basically not
self-executing, meaning a law should be passed by Congress to clearly define and
effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing
principles ready for enforcement through the courts. They were rather directives
addressed to the executive and the legislature. If the executive and the legislature
failed to heed the directives of the articles the available remedy was not judicial or
political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2)
Josef Elvin Campos
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47
Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v.
Comelec, 179 SCRA 287). Therefore, for PD 1869 to be nullified, it must be shown that
there is a clear and unequivocal breach of the Constitution, not merely a doubtful and
equivocal one. In other words, the grounds for nullity must be clear and beyond reasonable
doubt. (Peralta v. Comelec, supra) Those who petition this Court to declare a law, or parts
thereof, unconstitutional must clearly establish the basis for such a declaration. Otherwise,
their petition must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome the
presumption. The dismissal of this petition is therefore, inevitable. But as to whether P.D.
1869 remains a wise legislation considering the issues of "morality, monopoly, trend to free
enterprise, privatization as well as the state principles on social justice, role of youth and
educational values" being raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory
Board, 162 SCRA 521 —
Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any
case, in its favor the presumption of validity and constitutionality which petitioners
Valmonte and the KMU have not overturned. Petitioners have not undertaken to
identify the provisions in the Constitution which they claim to have been violated by
that statute. This Court, however, is not compelled to speculate and to imagine how
the assailed legislation may possibly offend some provision of the Constitution. The
Court notes, further, in this respect that petitioners have in the main put in question
the wisdom, justice and expediency of the establishment of the OPSF, issues which
are not properly addressed to this Court and which this Court may not
constitutionally pass upon. Those issues should be addressed rather to the political
departments of government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so
when the gambling resorted to is excessive. This excessiveness necessarily depends not
only on the financial resources of the gambler and his family but also on his mental, social,
and spiritual outlook on life. However, the mere fact that some persons may have lost their
material fortunes, mental control, physical health, or even their lives does not necessarily
mean that the same are directly attributable to gambling. Gambling may have been the
antecedent, but certainly not necessarily the cause. For the same consequences could
have been preceded by an overdose of food, drink, exercise, work, and even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento, Griño-
Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Separate Opinions
PADILLA, J., concurring:
I concur in the result of the learned decision penned by my brother Mr. Justice Paras. This
means that I agree with the decision insofar as it holds that the prohibition, control, and
regulation of the entire activity known as gambling properly pertain to "state policy." It is,
therefore, the political departments of government, namely, the legislative and the executive
that should decide on what government should do in the entire area of gambling, and
assume full responsibility to the people for such policy.
The courts, as the decision states, cannot inquire into the wisdom, morality or expediency of
policies adopted by the political departments of government in areas which fall within their
authority, except only when such policies pose a clear and present danger to the life, liberty
or property of the individual. This case does not involve such a factual situation.
However, I hasten to make of record that I do not subscribe to gambling in any form. It
demeans the human personality, destroys self-confidence and eviscerates one's self-
respect, which in the long run will corrode whatever is left of the Filipino moral character.
Gambling has wrecked and will continue to wreck families and homes; it is an antithesis to
individual reliance and reliability as well as personal industry which are the touchstones of
real economic progress and national development.
Josef Elvin Campos
Gambling is reprehensible whether maintained by government or privatized. The revenues
realized by the government out of "legalized" gambling will, in the long run, be more than
offset and negated by the irreparable damage to the people's moral values.
Also, the moral standing of the government in its repeated avowals against "illegal
gambling" is fatally flawed and becomes untenable when it itself engages in the very activity
it seeks to eradicate.
One can go through the Court's decision today and mentally replace the activity referred to
therein as gambling, which is legal only because it is authorized by law and run by the
government, with the activity known as prostitution. Would prostitution be any less
reprehensible were it to be authorized by law, franchised, and "regulated" by the
government, in return for the substantial revenues it would yield the government to carry out
its laudable projects, such as infrastructure and social amelioration? The question, I believe,
answers itself. I submit that the sooner the legislative department outlaws all forms of
gambling, as a fundamental state policy, and the sooner the executive implements such
policy, the better it will be for the nation.
Melencio-Herrera, J., concur.
Lina v Pano (G.R. No. 129093, August 30, 2001)

[G.R. No. 129093. August 30, 2001.]
HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF LAGUNA, and HON.
CALIXTO CATAQUIZ, Petitioners, v. HON. FRANCISCO DIZON PAÑO and TONY
CALVENTO, Respondents.
DECISION
QUISUMBING, J.:
For our resolution is a petition for review on certiorari seeking the reversal of the decision 1
dated February 10, 1997 of the Regional Trial Court of San Pedro, Laguna, Branch 93,
enjoining petitioners from implementing or enforcing Kapasiyahan Bilang 508, Taon 1995,
of the Sangguniang Panlalawigan of Laguna and its subsequent Order 2 dated April 21,
1997 denying petitioners’ motion for reconsideration.
On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine
Charity Sweepstakes Office (PCSO) to install Terminal OM 20 for the operation of lotto. He
asked Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna, for a mayor’s permit to open
the lotto outlet. This was denied by Mayor Cataquiz in a letter dated February 19, 1996. The
ground for said denial was an ordinance passed by the Sangguniang Panlalawigan of
Laguna entitled Kapasiyahan Blg. 508, T. 1995 which was issued on September 18, 1995.
The ordinance reads:
ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING" LALO NA ANG

LOTTO SA LALAWIGAN NG LAGUNA
SAPAGKA’T, ang sugal dito sa lalawigan ng Laguna ay talamak na;
SAPAGKA’T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo’t higit sa mga

kabataan;
KUNG KAYA’T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at Kgg. Kgd.
Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd. Meliton C. Larano at buong pagkakaisang
sinangayunan ng lahat ng dumalo sa pulong;
IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano mang uri ng
sugal dito sa lalawigan ng Laguna lalo’t higit ang Lotto;
IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang pinuno ng

Philippine National Police (PNP) Col. [illegible] na mahigpit na pag-ibayuhin ang pagsugpo
sa lahat ng uri ng illegal na sugal sa buong lalawigan ng Laguna lalo na ang "Jueteng." 3
As a result of this resolution of denial, respondent Calvento filed a complaint for declaratory
relief with prayer for preliminary injunction and temporary restraining order. In the said
complaint, respondent Calvento asked the Regional Trial Court of San Pedro Laguna,
Josef Elvin Campos
Branch 93, for the following reliefs: (1) a preliminary injunction or temporary restraining
order, ordering the defendants to refrain from implementing or enforcing Kapasiyahan Blg.
508, T. 1995; (2) an order requiring Hon. Municipal Mayor Calixto R Cataquiz to issue a
business permit for the operation of a lotto outlet; and (3) an order annulling or declaring as
invalid Kapasiyahan Blg. 508, T. 1995.
On February 10, 1997, the respondent judge, Francisco Dizon Paño, promulgated his
decision enjoining the petitioners from implementing or enforcing resolution or Kapasiyahan
Blg. 508, T. 1995. The dispositive portion of said decision reads:
WHEREFORE, premises considered, Defendants, their agents and representatives are

hereby enjoined from implementing or enforcing resolution or kapasiyahan blg. 508, T. 1995
of the Sangguniang Panlalawigan ng Laguna prohibiting the operation of the lotto in the
province of Laguna.
SO ORDERED.
Petitioners filed a motion for reconsideration which was subsequently denied in an Order
dated April 21, 1997, which reads:
Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr. and the
Sangguniang Panlalawigan of Laguna, thru counsel, with the opposition filed by plaintiff’s
counsel and the comment thereto filed by counsel for the defendants which were duly
noted, the Court hereby denies the motion for lack of merit.
SO ORDERED.
On May 23, 1997, petitioners filed this petition alleging that the following errors were
committed by the respondent trial court:chanrob1es virtual 1aw library
I
THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM IMPLEMENTING
KAPASIYAHAN BLG. 508, T. 1995 OF THE SANGGUNIANG PANLALAWIGAN OF
LAGUNA PROHIBITING THE OPERATION OF THE LOTTO IN THE PROVINCE OF
LAGUNA.
II
THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED BY THE
PETITIONERS THAT BEFORE ANY GOVERNMENT PROJECT OR PROGRAM MAY BE
IMPLEMENTED BY THE NATIONAL AGENCIES OR OFFICES, PRIOR CONSULTATION
AND APPROVAL BY THE LOCAL GOVERNMENT UNITS CONCERNED AND OTHER
CONCERNED SECTORS IS REQUIRED.
Petitioners contend that the assailed resolution is a valid policy declaration of the Provincial
Government of Laguna of its vehement objection to the operation of lotto and all forms of
gambling. It is likewise a valid exercise of the provincial government’s police power under
the General Welfare Clause of Republic Act 7160, otherwise known as the Local
Government Code of 1991. 6 They also maintain that respondent’s lotto operation is illegal
because no prior consultations and approval by the local government were sought before it
was implemented contrary to the express provisions of Sections 2 (c) and 27 of R.A. 7160.
For his part, respondent Calvento argues that the questioned resolution is, in effect, a
curtailment of the power of the state since in this case the national legislature itself had
already declared lotto as legal and permitted its operations around the country. 8 As for the
allegation that no prior consultations and approval were sought from the sangguniang
panlalawigan of Laguna, respondent Calvento contends this is not mandatory since such a
requirement is merely stated as a declaration of policy and not a self-executing provision of
the Local Government Code of 1991. 9 He also states that his operation of the lotto system
is legal because of the authority given to him by the PCSO, which in turn had been granted
a franchise to operate the lotto by Congress.
The Office of the Solicitor General (OSG), for the State, contends that the Provincial
Government of Laguna has no power to prohibit a form of gambling which has been
authorized by the national government. 11 He argues that this is based on the principle that
ordinances should not contravene statutes as municipal governments are merely agents of
Josef Elvin Campos
the national government. The local councils exercise only delegated legislative powers
which have been conferred on them by Congress. This being the case, these councils, as
delegates, cannot be superior to the principal or exercise powers higher than those of the
latter. The OSG also adds that the question of whether gambling should be permitted is for
Congress to determine, taking into account national and local interests. Since Congress has
allowed the PCSO to operate lotteries which PCSO seeks to conduct in Laguna, pursuant to
its legislative grant of authority, the province’s Sangguniang Panlalawigan cannot nullify the
exercise of said authority by preventing something already allowed by Congress.
The issues to be resolved now are the following: (1) whether Kapasiyahan Blg. 508, T. 1995
of the Sangguniang Panlalawigan of Laguna and the denial of a mayor’s permit based
thereon are valid; and (2) whether prior consultations and approval by the concerned
Sanggunian are needed before a lotto system can be operated in a given local government
unit.
The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a mayor’s
permit for the operation of a lotto outlet in favor of private Respondent. According to the
mayor, he based his decision on an existing ordinance prohibiting the operation of lotto in
the province of Laguna. The ordinance, however, merely states the "objection" of the
council to the said game. It is but a mere policy statement on the part of the local council,
which is not self-executing. Nor could it serve as a valid ground to prohibit the operation of
the lotto system in the province of Laguna. Even petitioners admit as much when they
stated in their petition that:
5.7. The terms of the Resolution and the validity thereof are express and clear. The
Resolution is a policy declaration of the Provincial Government of Laguna of its vehement
opposition and/or objection to the operation of and/or all forms of gambling including the
Lotto operation in the Province of Laguna.
As a policy statement expressing the local government’s objection to the lotto, such
resolution is valid. This is part of the local government’s autonomy to air its views which
may be contrary to that of the national government’s. However, this freedom to exercise
contrary views does not mean that local governments may actually enact ordinances that go
against laws duly enacted by Congress. Given this premise, the assailed resolution in this
case could not and should not be interpreted as a measure or ordinance prohibiting the
operation of lotto.
The game of lotto is a game of chance duly authorized by the national government through
an Act of Congress. Republic Act 1169, as amended by Batas Pambansa Blg. 42, is the law
which grants a franchise to the PCSO and allows it to operate the lotteries. The pertinent
provision reads:
SECTION 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity

Sweepstakes Office, hereinafter designated the Office, shall be the principal government
agency for raising and providing for funds for health programs, medical assistance and
services and charities of national character, and as such shall have the general powers
conferred in section thirteen of Act Numbered One thousand four hundred fifty-nine, as
amended, and shall have the authority
A. To hold and conduct charity sweepstakes races, lotteries, and other similar activities, in
such frequency and manner, as shall be determined, and subject to such rules and
regulations as shall be promulgated by the Board of Directors.
This statute remains valid today. While lotto is clearly a game of chance, the national
government deems it wise and proper to permit it. Hence, the Sangguniang Panlalawigan of
Laguna, a local government unit, cannot issue a resolution or an ordinance that would seek
to prohibit permits. Stated otherwise, what the national legislature expressly allows by law,
such as lotto, a provincial board may not disallow by ordinance or resolution.
In our system of government, the power of local government units to legislate and enact
ordinances and resolutions is merely a delegated power coming from Congress. As held in
Tatel v. Virac, 13 ordinances should not contravene an existing statute enacted by
Josef Elvin Campos
Congress. The reasons for this is obvious, as elucidated in Magtajas v. Pryce Properties
Corp.
Municipal governments are only agents of the national government. Local councils exercise
only delegated legislative powers conferred upon them by Congress as the national
lawmaking body. The delegate cannot be superior to the principal or exercise powers higher
than those of the latter. It is a heresy to suggest that the local government units can undo
the acts of Congress, from which they have derived their power in the first place, and
negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly from
the legislature. It breathes into them the breath of life, without which they cannot exist. As it
creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is
some constitutional limitation on the right, the legislature might, by a single act, and if we
can suppose it capable of so great a folly and so great a wrong, sweep from existence all of
the municipal corporations in the state, and the corporation could not prevent it. We know of
no limitation on the right so far as the corporation themselves are concerned. They are, so
to phrase it, the mere tenants at will of the legislature (citing Clinton v. Ceder Rapids, etc.
Railroad Co., 24 Iowa 455).
Nothing in the present constitutional provision enhancing local autonomy dictates a different
conclusion.
The basic relationship between the national legislature and the local government units has
not been enfeebled by the new provisions in the Constitution strengthening the policy of
local autonomy. Without meaning to detract from that policy, we here confirm that Congress
retains control of the local government units although in significantly reduced degree now
than under our previous Constitutions. The power to create still includes the power to
destroy. The power to grant still includes the power to withhold or recall. True, there are
certain notable innovations in the Constitution, like the direct conferment on the local
government units of the power to tax (citing Art. X, Sec. 5, Constitution), which cannot now
be withdrawn by mere statute. By and large, however, the national legislature is still the
principal of the local government units, which cannot defy its will or modify or violate it.
Ours is still a unitary form of government, not a federal state. Being so, any form of
autonomy granted to local governments will necessarily be limited and confined within the
extent allowed by the central authority. Besides, the principle of local autonomy under the
1987 Constitution simply means "decentralization." It does not make local governments
sovereign within the state or an "imperium in imperio."
To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail
of Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as justification to
prohibit lotto in his municipality. For said resolution is nothing but an expression of the local
legislative unit concerned. The Board’s enactment, like spring water, could not rise above its
source of power, the national legislature.
As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and
27 of Republic Act 7160, otherwise known as the Local Government Code of 1991, apply
mandatorily in the setting up of lotto outlets around the country. These provisions state:
SECTION 2. Declaration of Policy. — . . .
(c) It is likewise the policy of the State to require all national agencies and offices to conduct
periodic consultations with appropriate local government units, non-governmental and
people’s organizations, and other concerned sectors of the community before any project or
program is implemented in their respective jurisdictions.
SECTION 27. Prior Consultations Required. — No project or program shall be implemented

by government authorities unless the consultations mentioned in Section 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained;
Provided, that occupants in areas where such projects are to be implemented shall not be
evicted unless, appropriate relocation sites have been provided, in accordance with the
provisions of the Constitution.
Josef Elvin Campos
From a careful reading of said provisions, we find that these apply only to national programs
and/or projects which are to be implemented in a particular local community. Lotto is neither
a program nor a project of the national government, but of a charitable institution, the
PCSO. Though sanctioned by the national government, it is far fetched to say that lotto falls
within the contemplation of Sections 2 (c) and 27 of the Local Government Code.
Section 27 of the Code should be read in conjunction with Section 26 thereof. 17 Section 26
reads:chanrob1es virtual 1aw library
SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological

Balance. It shall be the duty of every national agency or government-owned or controlled
corporation authorizing or involved in the planning and implementation of any project or
program that may cause pollution, climatic change, depletion of non-renewable resources,
loss of crop land, range-land, or forest cover, and extinction of animal or plant species, to
consult with the local government units, nongovernmental organizations, and other sectors
concerned and explain the goals and objectives of the project or program, its impact upon
the people and the community in terms of environmental or ecological balance, and the
measures that will be undertaken to prevent or minimize the adverse effects
thereof.chanrob1es virtua1 1aw 1ibrary
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean
projects and programs whose effects are among those enumerated in Section 26 and 27, to
wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause
the depletion of non-renewable resources; (4) may result in loss of crop land, range-land, or
forest cover; (5) may eradicate certain animal or plant species from the face of the planet;
and (6) other projects or programs that may call for the eviction of a particular group of
people residing in the locality where these will be implemented. Obviously, none of these
effects will be produced by the introduction of lotto in the province of Laguna.
Moreover, the argument regarding lack of consultation raised by petitioners is clearly an

afterthought on their part. There is no indication in the letter of Mayor Cataquiz that this was
one of the reasons for his refusal to issue a permit. That refusal was predicated solely but
erroneously on the provisions of Kapasiyahan Blg. 508, Taon 1995, of the Sangguniang
Panlalawigan of Laguna.
In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz from
enforcing or implementing the Kapasiyahan Blg. 508, T. 1995, of the Sangguniang
Panlalawigan of Laguna. That resolution expresses merely a policy statement of the Laguna
provincial board. It possesses no binding legal force nor requires any act of implementation.
It provides no sufficient legal basis for respondent mayor’s refusal to issue the permit
sought by private respondent in connection with a legitimate business activity authorized by
a law passed by Congress.
WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional Trial
Court of San Pedro, Laguna enjoining the petitioners from implementing or enforcing
Resolution or Kapasiyahan Blg. 508, T. 1995, of the Provincial Board of Laguna is hereby
AFFIRMED. No costs.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.
Limbona v. Mangelin (G.R. No. 80391, February 28, 1989)

G.R. No. 80391 February 28, 1989
SULTAN ALIMBUSAR P. LIMBONA, petitioner,
vs.
CONTE MANGELIN, SALIC ALI, SALINDATO ALI, PILIMPINAS CONDING, ACMAD
TOMAWIS, GERRY TOMAWIS, JESUS ORTIZ, ANTONIO DELA FUENTE, DIEGO
PALOMARES, JR., RAUL DAGALANGIT, and BIMBO SINSUAT, respondents.
Ambrosio Padilla, Mempin & Reyes Law Offices for petitioner petitioner.
Makabangkit B. Lanto for respondents.
SARMIENTO, J.:
Josef Elvin Campos
The acts of the Sangguniang Pampook of Region XII are assailed in this petition. The
antecedent facts are as follows:
1. On September 24, 1986, petitioner Sultan Alimbusar Limbona was
appointed as a member of the Sangguniang Pampook, Regional Autonomous
Government, Region XII, representing Lanao del Sur.
2. On March 12, 1987 petitioner was elected Speaker of the Regional
Legislative Assembly or Batasang Pampook of Central Mindanao (Assembly
for brevity).
3. Said Assembly is composed of eighteen (18) members. Two of said
members, respondents Acmad Tomawis and Pakil Dagalangit, filed on March
23, 1987 with the Commission on Elections their respective certificates of
candidacy in the May 11, 1987 congressional elections for the district of
Lanao del Sur but they later withdrew from the aforesaid election and
thereafter resumed again their positions as members of the Assembly.
4. On October 21, 1987 Congressman Datu Guimid Matalam, Chairman of

the Committee on Muslim Affairs of the House of Representatives, invited Mr.
Xavier Razul, Pampook Speaker of Region XI, Zamboanga City and the
petitioner in his capacity as Speaker of the Assembly, Region XII, in a letter
which reads:
The Committee on Muslim Affairs well undertake consultations
and dialogues with local government officials, civic, religious
organizations and traditional leaders on the recent and present
political developments and other issues affecting Regions IX
and XII.
The result of the conference, consultations and dialogues
would hopefully chart the autonomous governments of the two
regions as envisioned and may prod the President to constitute
immediately the Regional Consultative Commission as
mandated by the Commission.
You are requested to invite some members of the Pampook
Assembly of your respective assembly on November 1 to 15,
1987, with venue at the Congress of the Philippines. Your
presence, unstinted support and cooperation is (sic)
indispensable.
5. Consistent with the said invitation, petitioner sent a telegram to Acting
Secretary Johnny Alimbuyao of the Assembly to wire all Assemblymen that
there shall be no session in November as "our presence in the house
committee hearing of Congress take (sic) precedence over any pending
business in batasang pampook ... ."
6. In compliance with the aforesaid instruction of the petitioner, Acting
Secretary Alimbuyao sent to the members of the Assembly the following
telegram:
TRANSMITTING FOR YOUR INFORMATION AND
GUIDANCE TELEGRAM RECEIVED FROM SPEAKER
LIMBONA QUOTE CONGRESSMAN JIMMY MATALAM
CHAIRMAN OF THE HOUSE COMMITTEE ON MUSLIM
AFFAIRS REQUESTED ME TO ASSIST SAID COMMITTEE IN
THE DISCUSSION OF THE PROPOSED AUTONOMY
ORGANIC NOV. 1ST TO 15. HENCE WERE ALL
ASSEMBLYMEN THAT THERE SHALL BE NO SESSION IN
NOVEMBER AS OUR PRESENCE IN THE HOUSE
COMMITTEE HEARING OF CONGRESS TAKE
PRECEDENCE OVER ANY PENDING BUSINESS IN
BATASANG PAMPOOK OF MATALAM FOLLOWS UNQUOTE
REGARDS.
7. On November 2, 1987, the Assembly held session in defiance of
petitioner's advice, with the following assemblymen present:
1. Sali, Salic
2. Conding, Pilipinas (sic)
3. Dagalangit, Rakil
4. Dela Fuente, Antonio
5. Mangelen, Conte
Josef Elvin Campos
6. Ortiz, Jesus
7. Palomares, Diego
8. Sinsuat, Bimbo
9. Tomawis, Acmad
10. Tomawis, Jerry
After declaring the presence of a quorum, the Speaker Pro-Tempore was
authorized to preside in the session. On Motion to declare the seat of the
Speaker vacant, all Assemblymen in attendance voted in the affirmative,
hence, the chair declared said seat of the Speaker vacant. 8. On November
5, 1987, the session of the Assembly resumed with the following
Assemblymen present:
1. Mangelen Conte-Presiding Officer
2. Ali Salic
3. Ali Salindatu
4. Aratuc, Malik
5. Cajelo, Rene
6. Conding, Pilipinas (sic)
7. Dagalangit, Rakil
8. Dela Fuente, Antonio
9. Ortiz, Jesus
10 Palomares, Diego
11. Quijano, Jesus
12. Sinsuat, Bimbo
13. Tomawis, Acmad
14. Tomawis, Jerry
An excerpt from the debates and proceeding of said session reads:
HON. DAGALANGIT: Mr. Speaker, Honorable Members of the House, with
the presence of our colleagues who have come to attend the session today, I
move to call the names of the new comers in order for them to cast their
votes on the previous motion to declare the position of the Speaker vacant.
But before doing so, I move also that the designation of the Speaker Pro
Tempore as the Presiding Officer and Mr. Johnny Evangelists as Acting
Secretary in the session last November 2, 1987 be reconfirmed in today's
session.
HON. SALIC ALI: I second the motions.
PRESIDING OFFICER: Any comment or objections on the two motions
presented? Me chair hears none and the said motions are approved. ...
Twelve (12) members voted in favor of the motion to declare the seat of the
Speaker vacant; one abstained and none voted against. 1
Accordingly, the petitioner prays for judgment as follows:
WHEREFORE, petitioner respectfully prays that-
(a) This Petition be given due course;
(b) Pending hearing, a restraining order or writ of preliminary injunction be
issued enjoining respondents from proceeding with their session to be held
on November 5, 1987, and on any day thereafter;
(c) After hearing, judgment be rendered declaring the proceedings held by
respondents of their session on November 2, 1987 as null and void;
(d) Holding the election of petitioner as Speaker of said Legislative Assembly
or Batasan Pampook, Region XII held on March 12, 1987 valid and
subsisting, and
(e) Making the injunction permanent.
Petitioner likewise prays for such other relief as may be just and equitable. 2
Pending further proceedings, this Court, on January 19, 1988, received a resolution filed by
the Sangguniang Pampook, "EXPECTING ALIMBUSAR P. LIMBONA FROM
MEMBERSHIP OF THE SANGGUNIANG PAMPOOK AUTONOMOUS REGION XII," 3 on
the grounds, among other things, that the petitioner "had caused to be prepared and signed
by him paying [sic] the salaries and emoluments of Odin Abdula, who was considered
resigned after filing his Certificate of Candidacy for Congressmen for the First District of
Maguindanao in the last May 11, elections. . . and nothing in the record of the Assembly will
show that any request for reinstatement by Abdula was ever made . . ." 4 and that "such
action of Mr. Lim bona in paying Abdula his salaries and emoluments without authority from
the Assembly . . . constituted a usurpation of the power of the Assembly," 5 that the
Josef Elvin Campos
petitioner "had recently caused withdrawal of so much amount of cash from the Assembly
resulting to the non-payment of the salaries and emoluments of some Assembly [sic]," 6 and
that he had "filed a case before the Supreme Court against some members of the Assembly
on question which should have been resolved within the confines of the Assembly," 7 for
which the respondents now submit that the petition had become "moot and academic". 8
The first question, evidently, is whether or not the expulsion of the petitioner (pending
litigation) has made the case moot and academic.
We do not agree that the case has been rendered moot and academic by reason simply of
the expulsion resolution so issued. For, if the petitioner's expulsion was done purposely to
make this petition moot and academic, and to preempt the Court, it will not make it
academic.
On the ground of the immutable principle of due process alone, we hold that the expulsion
in question is of no force and effect. In the first place, there is no showing that the
Sanggunian had conducted an investigation, and whether or not the petitioner had been
heard in his defense, assuming that there was an investigation, or otherwise given the
opportunity to do so. On the other hand, what appears in the records is an admission by the
Assembly (at least, the respondents) that "since November, 1987 up to this writing, the
petitioner has not set foot at the Sangguniang Pampook." 9 "To be sure, the private
respondents aver that "[t]he Assemblymen, in a conciliatory gesture, wanted him to come to
Cotabato City," 10 but that was "so that their differences could be threshed out and
settled." 11 Certainly, that avowed wanting or desire to thresh out and settle, no matter how
conciliatory it may be cannot be a substitute for the notice and hearing contemplated by law.
While we have held that due process, as the term is known in administrative law, does not
absolutely require notice and that a party need only be given the opportunity to be
heard, 12 it does not appear herein that the petitioner had, to begin with, been made aware
that he had in fact stood charged of graft and corruption before his collegues. It cannot be
said therefore that he was accorded any opportunity to rebut their accusations. As it stands,
then, the charges now levelled amount to mere accusations that cannot warrant expulsion.
In the second place, (the resolution) appears strongly to be a bare act of vendetta by the
other Assemblymen against the petitioner arising from what the former perceive to be
abduracy on the part of the latter. Indeed, it (the resolution) speaks of "a case [having been
filed] [by the petitioner] before the Supreme Court . . . on question which should have been
resolved within the confines of the Assemblyman act which some members claimed
unnecessarily and unduly assails their integrity and character as representative of the
people" 13 an act that cannot possibly justify expulsion. Access to judicial remedies is
guaranteed by the Constitution, 14 and, unless the recourse amounts to malicious
prosecution, no one may be punished for seeking redress in the courts.
We therefore order reinstatement, with the caution that should the past acts of the petitioner
indeed warrant his removal, the Assembly is enjoined, should it still be so minded, to
commence proper proceedings therefor in line with the most elementary requirements of
due process. And while it is within the discretion of the members of the Sanggunian to
punish their erring colleagues, their acts are nonetheless subject to the moderating band of
this Court in the event that such discretion is exercised with grave abuse.
It is, to be sure, said that precisely because the Sangguniang Pampook(s) are
"autonomous," the courts may not rightfully intervene in their affairs, much less strike down
their acts. We come, therefore, to the second issue: Are the so-called autonomous
governments of Mindanao, as they are now constituted, subject to the jurisdiction of the
national courts? In other words, what is the extent of self-government given to the two
autonomous governments of Region IX and XII?
The autonomous governments of Mindanao were organized in Regions IX and XII by

Presidential Decree No. 1618 15 promulgated on July 25, 1979. Among other things, the
Decree established "internal autonomy" 16 in the two regions "[w]ithin the framework of the
national sovereignty and territorial integrity of the Republic of the Philippines and its
Constitution," 17 with legislative and executive machinery to exercise the powers and
responsibilities 18 specified therein.
Josef Elvin Campos
It requires the autonomous regional governments to "undertake all internal administrative
matters for the respective regions," 19 except to "act on matters which are within the
jurisdiction and competence of the National Government," 20 "which include, but are not
limited to, the following:
(1) National defense and security;
(2) Foreign relations;
(3) Foreign trade;
(4) Currency, monetary affairs, foreign exchange, banking and quasi-banking,
and external borrowing,
(5) Disposition, exploration, development, exploitation or utilization of all
natural resources;
(6) Air and sea transport
(7) Postal matters and telecommunications;
(8) Customs and quarantine;
(9) Immigration and deportation;
(10) Citizenship and naturalization;
(11) National economic, social and educational planning; and
(12) General auditing. 21
In relation to the central government, it provides that "[t]he President shall have the power of
general supervision and control over the Autonomous Regions ..." 22
Now, autonomy is either decentralization of administration or decentralization of power.

There is decentralization of administration when the central government delegates
administrative powers to political subdivisions in order to broaden the base of government
power and in the process to make local governments "more responsive and
accountable," 23 "and ensure their fullest development as self-reliant communities and make
them more effective partners in the pursuit of national development and social
progress." 24 At the same time, it relieves the central government of the burden of managing
local affairs and enables it to concentrate on national concerns. The President exercises
"general supervision" 25 over them, but only to "ensure that local affairs are administered
according to law." 26 He has no control over their acts in the sense that he can substitute
their judgments with his own. 27
Decentralization of power, on the other hand, involves an abdication of political power in the
favor of local governments units declare to be autonomous . In that case, the autonomous
government is free to chart its own destiny and shape its future with minimum intervention
from central authorities. According to a constitutional author, decentralization of power
amounts to "self-immolation," since in that event, the autonomous government becomes
accountable not to the central authorities but to its constituency. 28
But the question of whether or not the grant of autonomy Muslim Mindanao under the 1987
Constitution involves, truly, an effort to decentralize power rather than mere administration
is a question foreign to this petition, since what is involved herein is a local government unit
constituted prior to the ratification of the present Constitution. Hence, the Court will not
resolve that controversy now, in this case, since no controversy in fact exists. We will
resolve it at the proper time and in the proper case.
Under the 1987 Constitution, local government units enjoy autonomy in these two senses,
thus:
Section 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. Here shall
be autonomous regions in Muslim Mindanao ,and the Cordilleras as
hereinafter provided. 29
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. 30
xxx xxx xxx
See. 15. Mere shall be created autonomous regions in Muslim Mindanao and
in the Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics
within the framework of this Constitution and the national sovereignty as well
as territorial integrity of the Republic of the Philippines. 31
An autonomous government that enjoys autonomy of the latter category [CONST. (1987),
art. X, sec. 15.] is subject alone to the decree of the organic act creating it and accepted
Josef Elvin Campos
principles on the effects and limits of "autonomy." On the other hand, an autonomous
government of the former class is, as we noted, under the supervision of the national
government acting through the President (and the Department of Local Government). 32 If
the Sangguniang Pampook (of Region XII), then, is autonomous in the latter sense, its acts
are, debatably beyond the domain of this Court in perhaps the same way that
the internal acts, say, of the Congress of the Philippines are beyond our jurisdiction. But if it
is autonomous in the former category only, it comes unarguably under our jurisdiction. An
examination of the very Presidential Decree creating the autonomous governments of
Mindanao persuades us that they were never meant to exercise autonomy in the second
sense, that is, in which the central government commits an act of self-immolation.
Presidential Decree No. 1618, in the first place, mandates that "[t]he President shall have
the power of general supervision and control over Autonomous Regions." 33 In the second
place, the Sangguniang Pampook, their legislative arm, is made to discharge chiefly
administrative services, thus:
SEC. 7. Powers of the Sangguniang Pampook. The Sangguniang Pampook
shall exercise local legislative powers over regional affairs within the
framework of national development plans, policies and goals, in the following
areas:
(1) Organization of regional administrative system;
(2) Economic, social and cultural development of the Autonomous Region;
(3) Agricultural, commercial and industrial programs for the Autonomous
Region;
(4) Infrastructure development for the Autonomous Region;
(5) Urban and rural planning for the Autonomous Region;
(6) Taxation and other revenue-raising measures as provided for in this
Decree;
(7) Maintenance, operation and administration of schools established by the
Autonomous Region;
(8) Establishment, operation and maintenance of health, welfare and other
social services, programs and facilities;
(9) Preservation and development of customs, traditions, languages and
culture indigenous to the Autonomous Region; and
(10) Such other matters as may be authorized by law,including the enactment
of such measures as may be necessary for the promotion of the general
welfare of the people in the Autonomous Region.
The President shall exercise such powers as may be necessary to assure
that enactment and acts of the Sangguniang Pampook and the Lupong
Tagapagpaganap ng Pook are in compliance with this Decree, national
legislation, policies, plans and programs.
The Sangguniang Pampook shall maintain liaison with the Batasang
Pambansa. 34
Hence, we assume jurisdiction. And if we can make an inquiry in the validity of the
expulsion in question, with more reason can we review the petitioner's removal as Speaker.
Briefly, the petitioner assails the legality of his ouster as Speaker on the grounds that: (1)
the Sanggunian, in convening on November 2 and 5, 1987 (for the sole purpose of
declaring the office of the Speaker vacant), did so in violation of the Rules of the
Sangguniang Pampook since the Assembly was then on recess; and (2) assuming that it
was valid, his ouster was ineffective nevertheless for lack of quorum.
Upon the facts presented, we hold that the November 2 and 5, 1987 sessions were invalid.
It is true that under Section 31 of the Region XII Sanggunian Rules, "[s]essions shall not be
suspended or adjourned except by direction of the Sangguniang Pampook," 35 but it
provides likewise that "the Speaker may, on [sic] his discretion, declare a recess of "short
intervals." 36 Of course, there is disagreement between the protagonists as to whether or not
the recess called by the petitioner effective November 1 through 15, 1987 is the "recess of
short intervals" referred to; the petitioner says that it is while the respondents insist that, to
all intents and purposes, it was an adjournment and that "recess" as used by their Rules
only refers to "a recess when arguments get heated up so that protagonists in a debate can
talk things out informally and obviate dissenssion [sic] and disunity. 37 The Court agrees with
the respondents on this regard, since clearly, the Rules speak of "short intervals." Secondly,
the Court likewise agrees that the Speaker could not have validly called a recess since the
Assembly had yet to convene on November 1, the date session opens under the same
Josef Elvin Campos
Rules. 38 Hence, there can be no recess to speak of that could possibly interrupt any
session. But while this opinion is in accord with the respondents' own, we still invalidate the
twin sessions in question, since at the time the petitioner called the "recess," it was not a
settled matter whether or not he could. do so. In the second place, the invitation tendered
by the Committee on Muslim Affairs of the House of Representatives provided a plausible
reason for the intermission sought. Thirdly, assuming that a valid recess could not be called,
it does not appear that the respondents called his attention to this mistake. What appears is
that instead, they opened the sessions themselves behind his back in an apparent act of
mutiny. Under the circumstances, we find equity on his side. For this reason, we uphold the
"recess" called on the ground of good faith.
It does not appear to us, moreover, that the petitioner had resorted to the aforesaid "recess"
in order to forestall the Assembly from bringing about his ouster. This is not apparent from
the pleadings before us. We are convinced that the invitation was what precipitated it.
In holding that the "recess" in question is valid, we are not to be taken as establishing a
precedent, since, as we said, a recess can not be validly declared without a session having
been first opened. In upholding the petitioner herein, we are not giving him a carte
blanche to order recesses in the future in violation of the Rules, or otherwise to prevent the
lawful meetings thereof.
Neither are we, by this disposition, discouraging the Sanggunian from reorganizing itself
pursuant to its lawful prerogatives. Certainly, it can do so at the proper time. In the event
that be petitioner should initiate obstructive moves, the Court is certain that it is armed with
enough coercive remedies to thwart them. 39
In view hereof, we find no need in dwelling on the issue of quorum.
WHEREFORE, premises considered, the petition is GRANTED. The Sangguniang
Pampook, Region XII, is ENJOINED to (1) REINSTATE the petitioner as Member,
Sangguniang Pampook, Region XII; and (2) REINSTATE him as Speaker thereof. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.
Padilla, J., took no part.
Disomangcop v. Datumanong (G.R. No. 149848, 25 November 2004)

G.R. No. 149848 November 25, 2004
ARSADI M. DISOMANGCOP and RAMIR M. DIMALOTANG, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS
SIMEON A. DATUMANONG and THE SECRETARY OF BUDGET and MANAGEMENT
EMILIA T. BONCODIN, respondents.
DECISION
TINGA, J.:
At stake in the present case is the fate of regional autonomy for Muslim Mindanao which is
the epoch-making, Constitution-based project for achieving national unity in diversity.
Challenged in the instant petition for certiorari, prohibition and mandamus with prayer for a
temporary restraining order and/or writ of preliminary injunction 1 (Petition) are the
constitutionality and validity of Republic Act No. 8999 (R.A. 8999), 2 entitled "An Act
Establishing An Engineering District in the First District of the Province of Lanao del Sur and
Appropriating Funds Therefor," and Department of Public Works and Highways (DPWH)
Department Order No. 119 (D.O. 119) 3 on the subject, "Creation of Marawi Sub-District
Engineering Office."
The Background
The uncontested legal and factual antecedents of the case follow.
For the first time in its history after three Constitutions, the Philippines ordained the
establishment of regional autonomy with the adoption of the 1987 Constitution. Sections
14 and 15, Article X mandate the creation of autonomous regions in Muslim Mindanao and in
the Cordilleras. Section 15 specifically provides that "[t]here shall be created autonomous
Josef Elvin Campos
regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive historical and
cultural heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as territorial integrity
of the Republic of the Philippines." To effectuate this mandate, the Charter devotes a
number of provisions under Article X.5
Pursuant to the constitutional mandate, Republic Act No. 6734 (R.A. 6734), entitled "An Act
Providing for An Organic Act for the Autonomous Region in Muslim Mindanao," was
enacted and signed into law on 1 August 1989. The law called for the holding of a plebiscite
in the provinces of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao del Sur,
Maguindanao, Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del
Norte, and Zamboanga del Sur, and the cities of Cotabato, Dapitan, Dipolog, General
Santos, Iligan, Marawi, Pagadian, Puerto Princesa and Zamboanga. 6 In the ensuing
plebiscite held on 19 November 1989, only four (4) provinces voted for the creation of an
autonomous region, namely: Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi. These
provinces became the Autonomous Region in Muslim Mindanao (ARMM). 7 The law contains
elaborate provisions on the powers of the Regional Government and the areas of
jurisdiction which are reserved for the National Government. 8
In accordance with R.A. 6734, then President Corazon C. Aquino issued on 12 October
1990, Executive Order No. 426 (E.O. 426), entitled "Placing the Control and Supervision of
the Offices of the Department of Public Works and Highways within the Autonomous Region
in Muslim Mindanao under the Autonomous Regional Government, and for other purposes."
Sections 1 to 39 of the Executive Order are its operative provisions.
ARMM was formally organized on 6 November 1990. President Corazon C. Aquino flew to
Cotabato, the seat of the Regional Government, for the inauguration. At that point, she had
already signed seven (7) Executive Orders devolving to ARMM the powers of seven (7)
cabinet departments, namely: (1) local government; (2) labor and employment; (3) science
and technology; (4) public works and highways; (5) social welfare and development; (6)
tourism; and (7) environment and national resources. 10
Nearly nine (9) years later, on 20 May 1999, then Department of Public Works and
Highways (DPWH) Secretary Gregorio R. Vigilar issued D.O. 119 which reads, thus:
Subject: Creation of Marawi Sub-District Engineering Office
Pursuant to Sections 6 and 25 of Executive Order No. 124 dated 30 January 1987,
there is hereby created a DPWH Marawi Sub-District Engineering Office which shall
have jurisdiction over all national infrastructure projects and facilities under the
DPWH within Marawi City and the province of Lanao del Sur. The headquarters of
the Marawi Sub-District Engineering Office shall be at the former quarters of the
Marawi City Engineering Office.
Personnel of the above-mentioned Sub-District Engineering Office shall be made up
of employees of the National Government Section of the former Marawi City
Engineering Office who are now assigned with the Iligan City Sub-District
Engineering Office as may be determined by the DPWH Region XII Regional
Director. (Emphasis supplied)
Almost two (2) years later, on 17 January 2001, then President Joseph E. Estrada approved
and signed into law R.A. 8999. The text of the law reads:
AN ACT ESTABLISHING AN ENGINEERING DISTRICT IN THE FIRST DISTRICT
OF THE PROVINCE OF LANAO DEL SUR AND APPROPRIATING FUNDS
THEREFOR
Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:
SECTION 1. The City of Marawi and the municipalities comprising the First District of
the Province of Lanao del Sur are hereby constituted into an engineering district to
be known as the First Engineering District of the Province of Lanao del Sur.
SEC. 2. The office of the engineering district hereby created shall be established in
Marawi City, Province of Lanao del Sur.
SEC. 3. The amount necessary to carry out the provisions of this Act shall be
included in the General Appropriations Act of the year following its enactment into
law. Thereafter, such sums as may be necessary for the maintenance and continued
operation of the engineering district office shall be included in the annual General
Appropriations Act.
SEC. 4. This Act shall take effect upon its approval. (Emphasis supplied)
Josef Elvin Campos
Congress later passed Republic Act No. 9054 (R.A. 9054), entitled "An Act to Strengthen
and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for
the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in
Muslim Mindanao, as Amended." Like its forerunner, R.A. 9054 contains detailed provisions
on the powers of the Regional Government and the retained areas of governance of the
National Government.11
R.A. 9054 lapsed into law12 on 31 March 2001. It was ratified in a plebiscite held on 14
August 2001. The province of Basilan and the City of Marawi also voted to join ARMM on
the same date. R.A. 6734 and R.A. 9054 are collectively referred to as the ARMM Organic
Acts.
On 23 July 2001, petitioners Arsadi M. Disomangcop (Disomangcop) and Ramir M.
Dimalotang (Dimalotang) addressed a petition to then DPWH Secretary Simeon A.
Datumanong, seeking the revocation of D.O. 119 and the non-implementation of R.A. 8999.
No action, however, was taken on the petition. 13
Consequently, petitioners Disomangcop and Dimalotang filed the instant petition, in their
capacity as Officer-in-Charge and District Engineer/Engineer II, respectively, of the First
Engineering District of the Department of Public Works and Highways, Autonomous Region
in Muslim Mindanao (DPWH-ARMM) in Lanao del Sur.
Petitioners seek the following principal reliefs: (1) to annul and set aside D.O. 119; (2) to
prohibit respondent DPWH Secretary from implementing D.O. 119 and R.A. 8999 and
releasing funds for public works projects intended for Lanao del Sur and Marawi City to the
Marawi Sub-District Engineering Office and other administrative regions of DPWH; and (3)
to compel the Secretary of the Department of Budget and Management (DBM) to release all
funds for public works projects intended for Marawi City and the First District of Lanao del
Sur to the DPWH-ARMM First Engineering District in Lanao del Sur only; and to compel
respondent DPWH Secretary to let the DPWH-ARMM First Engineering District in Lanao del
Sur implement all public works projects within its jurisdictional area. 14
The petition includes an urgent application for the issuance of a temporary restraining order
(TRO) and, after hearing, a writ of preliminary injunction, to enjoin respondent DBM
Secretary from releasing funds for public works projects in Lanao del Sur to entities other
than the DPWH-ARMM First Engineering District in Lanao del Sur, and also to restrain the
DPWH Secretary from allowing others besides the DPWH-ARMM First Engineering District
in Lanao del Sur to implement public works projects in Lanao del Sur. 15
To support their petition, petitioners allege that D.O. 119 was issued with grave abuse of
discretion and that it violates the constitutional autonomy of the ARMM. They point out that
the challenged Department Order has tasked the Marawi Sub-District Engineering Office
with functions that have already been devolved to the DPWH-ARMM First Engineering
District in Lanao del Sur.16
Petitioners also contend that R.A. 8999 is a piece of legislation that was not intelligently and
thoroughly studied, and that the explanatory note to House Bill No. 995 (H.B. 995) from
which the law originated is questionable. Petitioners assert as well that prior to the
sponsorship of the law, no public hearing nor consultation with the DPWH-ARMM was
made. The House Committee on Public Works and Highways (Committee) failed to invite a
single official from the affected agency. Finally, petitioners argue that the law was skillfully
timed for signature by former President Joseph E. Estrada during the pendency of the
impeachment proceedings.17
In its resolution of 8 October 2001, the Court required respondents to file their comment. 18 In
compliance, respondents DPWH Secretary and DBM Secretary, through the Solicitor
General, filed on 7 January 2002, their Comment.
In their Comment,19 respondents, through the Office of the Solicitor General, maintain the
validity of D.O. 119, arguing that it was issued in accordance with Executive Order No. 124
(E.O. 124).20 In defense of the constitutionality of R.A. 8999, they submit that the powers of
the autonomous regions did not diminish the legislative power of Congress. 21 Respondents
also contend that the petitioners have no locus standi or legal standing to assail the
constitutionality of the law and the department order. They note that petitioners have no
personal stake in the outcome of the controversy. 22
Josef Elvin Campos
Asserting their locus standi, petitioners in their Memorandum 23 point out that they will suffer
actual injury as a result of the enactments complained of. 24
Jurisdictional Considerations
First, the jurisdictional predicates.
The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the
authority of the courts to determine in an appropriate action the validity of acts of the
political departments. It speaks of judicial prerogative in terms of duty. 25
Jurisprudence has laid down the following requisites for the exercise of judicial power: First,
there must be before the Court an actual case calling for the exercise of judicial review.
Second, the question before the Court must be ripe for adjudication. Third, the person
challenging the validity of the act must have standing to challenge. Fourth, the question of
constitutionality must have been raised at the earliest opportunity. Fifth, the issue of
constitutionality must be the very lis mota of the case. 26
In seeking to nullify acts of the legislature and the executive department on the ground that
they contravene the Constitution, the petition no doubt raises a justiciable controversy. As
held in Tañada v. Angara, 27 "where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute." But in deciding to take jurisdiction over this petition
questioning acts of the political departments of government, the Court will not review the
wisdom, merits, or propriety thereof, but will strike them down only on either of two grounds:
(1) unconstitutionality or illegality and (2) grave abuse of discretion. 28
For an abuse to be grave, the power must be exercised in an arbitrary or despotic manner
by reason of passion or personal hostility. The abuse of discretion must be patent and gross
as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty
enjoined or to act in contemplation of law. There is grave abuse of discretion when
respondent acts in a capricious or whimsical manner in the exercise of its judgment as to be
equivalent to lack of jurisdiction.29
The challenge to the legal standing of petitioners cannot succeed. Legal standing or locus
standi is defined as a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is being
challenged. The term "interest" means a material interest, an interest in issue affected by
the decree, as distinguished from a mere interest in the question involved, or a mere
incidental interest.30
A party challenging the constitutionality of a law, act, or statute must show "not only that the
law is invalid, but also that he has sustained or is in immediate, or imminent danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way." He must show that he 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 complained of. 31
But following the new trend, this Court is inclined to take cognizance of a suit although it
does not satisfy the requirement of legal standing when paramount interests are involved. In
several cases, the Court has adopted a liberal stance on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental significance to the people. 32
In the instant case, petitioner Disomangcop holds the position of Engineer IV. When he filed
this petition, he was the Officer-in-Charge, Office of the District Engineer of the First
Engineering District of DPWH-ARMM, Lanao del Sur. On the other hand, petitioner
Dimalotang is an Engineer II and President of the rank and file employees also of the First
Engineering District of DPWH-ARMM in Lanao del Sur. Both are charged with the duty and
responsibility of supervising and implementing all public works projects to be undertaken
and being undertaken in Lanao del Sur which is the area of their jurisdiction. 33
It is thus not far-fetched that the creation of the Marawi Sub-District Engineering Office
under D.O. 119 and the creation of and appropriation of funds to the First Engineering
District of Lanao del Sur as directed under R.A. 8999 will affect the powers, functions and
Josef Elvin Campos
responsibilities of the petitioners and the DPWH-ARMM. As the two offices have apparently
been endowed with functions almost identical to those of DPWH-ARMM First Engineering
District in Lanao del Sur, it is likely that petitioners are in imminent danger of being eased
out of their duties and, not remotely, even their jobs. Their material and substantial interests
will definitely be prejudiced by the enforcement of D.O. 119 and R.A. 8999. Such injury is
direct and immediate. Thus, they can legitimately challenge the validity of the enactments
subject of the instant case.
Points of Contention
In the petition before us, petitioners contend that R.A. 8999 and D.O. 119 are
unconstitutional and were issued with grave abuse of discretion.
We agree in part.
Republic Act No. 8999
At the outset, let it be made clear that it is not necessary to declare R.A. No. 8999
unconstitutional for the adjudication of this case. The accepted rule is that the Court will not
resolve a constitutional question unless it is the lis mota of the case, or if the case can be
disposed of or settled on other grounds.34
The plain truth is the challenged law never became operative and was superseded or
repealed by a subsequent enactment.
The ARMM Organic Acts are deemed a part of the regional autonomy scheme. While they
are classified as statutes, the Organic Acts are more than ordinary statutes because they
enjoy affirmation by a plebiscite. 35 Hence, the provisions thereof cannot be amended by an
ordinary statute, such as R.A. 8999 in this case. The amendatory law has to be submitted to
a plebiscite.
We quote excerpts of the deliberations of the Constitutional Commission:
FR. BERNAS. Yes, that is the reason I am bringing this up. This thing involves some
rather far-reaching consequences also in relation to the issue raised by
Commissioner Romulo with respect to federalism. Are we, in effect, creating new
categories of laws? Generally, we have statutes and constitutional provisions. Is this
organic act equivalent to a constitutional provision? If it is going to be equivalent to a
constitutional provision, it would seem to me that the formulation of the provisions of
the organic act will have to be done by the legislature, acting as a constituent
assembly, and therefore, subject to the provisions of the Article on Amendments.
That is the point that I am trying to bring up. In effect, if we opt for federalism, it
would really involve an act of the National Assembly or Congress acting as a
constituent assembly and present amendments to this Constitution, and the end
product itself would be a constitutional provision which would only be amendable
according to the processes indicated in the Constitution.
MR. OPLE. Madam President, may I express my personal opinion in this respect.
I think to require Congress to act as a constituent body before enacting an organic
act would be to raise an autonomous region to the same level as the sovereign
people of the whole country. And I think the powers of the Congress should be quite
sufficient in enacting a law, even if it is now exalted to the level of an organic act for
the purpose of providing a basic law for an autonomous region without having to
transform itself into a constituent assembly. We are dealing still with one subordinate
subdivision of the State even if it is now vested with certain autonomous powers on
which its own legislature can pass laws.
FR. BERNAS. So the questions I have raised so far with respect to this organic act
are: What segment of the population will participate in the plebiscite? In what
capacity would the legislature be acting when it passes this? Will it be a constituent
assembly or merely a legislative body? What is the nature, therefore, of this organic
act in relation to ordinary statutes and the Constitution? Finally, if we are going to
amend this organic act, what process will be followed?
MR. NOLLEDO. May I answer that, please, in the light of what is now appearing in
our report.
First, only the people who are residing in the units composing the regions should be
allowed to participate in the plebiscite. Second, the organic act has the character of a
charter passed by the Congress, not as a constituent assembly, but as an ordinary
legislature and, therefore, the organic act will still be subject to amendments in the
ordinary legislative process as now constituted, unless the Gentlemen has another
purpose.
FR. BERNAS. But with plebiscite again.
Josef Elvin Campos
MR. NOLLEDO. Those who will participate in the plebiscite are those who are
directly affected, the inhabitants of the units constitutive of the region. (Emphasis
supplied)36
Although R.A. 9054 was enacted later, it reaffirmed the imperativeness of the plebiscite
requirement.37 In fact, R.A. 9054 itself, being the second or later ARMM Organic Act, was
subjected to and ratified in a plebiscite.
The first ARMM Organic Act, R.A. 6074, as implemented by E.O. 426, devolved the
functions of the DPWH in the ARMM which includes Lanao del Sur (minus Marawi City at
the time)38 to the Regional Government. By creating an office with previously devolved
functions, R.A. 8999, in essence, sought to amend R.A. 6074. The amendatory law should
therefore first obtain the approval of the people of the ARMM before it could validly take
effect. Absent compliance with this requirement, R.A. 8999 has not even become operative.
From another perspective, R.A. 8999 was repealed and superseded by R.A. 9054. Where a
statute of later date clearly reveals an intention on the part of the legislature to abrogate a
prior act on the subject, that intention must be given effect.
Of course, the intention to repeal must be clear and manifest. 39 Implied repeal by
irreconcilable inconsistency takes place when the two statutes cover the same subject
matter; they are clearly inconsistent and incompatible with each other that they cannot be
reconciled or harmonized; and both cannot be given effect, that is, that one law cannot be
enforced without nullifying the other. 40
The Court has also held that statutes should be construed in light of the objective to be
achieved and the evil or mischief to be suppressed, and they should be given such
construction as will advance the object, suppress the mischief and secure the benefits
intended.41
R.A. 9054 is anchored on the 1987 Constitution. It advances the constitutional grant of
autonomy by detailing the powers of the ARG covering, among others, Lanao del Sur and
Marawi City, one of which is its jurisdiction over regional urban and rural planning. R.A.
8999, however, ventures to reestablish the National Government's jurisdiction over
infrastructure programs in Lanao del Sur. R.A. 8999 is patently inconsistent with R.A. 9054,
and it destroys the latter law's objective.
Clearly, R.A. 8999 is antagonistic to and cannot be reconciled with both ARMM Organic
Acts, R.A. 6734 and R.A. 9054. The kernel of the antagonism and disharmony lies in the
regional autonomy which the ARMM Organic Acts ordain pursuant to the Constitution. On
the other hand, R.A. 8999 contravenes true decentralization which is the essence of
regional autonomy.
Regional Autonomy Under

R.A. 6734 and R.A. 9054
The 1987 Constitution mandates regional autonomy to give a bold and unequivocal answer
to the cry for a meaningful, effective and forceful autonomy. 42 According to Commissioner
Jose Nolledo, Chairman of the Committee which drafted the provisions, it "is an indictment
against the status quo of a unitary system that, to my mind, has ineluctably tied the hands of
progress in our country . . . our varying regional characteristics are factors to capitalize on to
attain national strength through decentralization." 43
The idea behind the Constitutional provisions for autonomous regions is to allow the
separate development of peoples with distinctive cultures and traditions. 44 These cultures,
as a matter of right, must be allowed to flourish. 45
Autonomy, as a national policy, recognizes the wholeness of the Philippine society in its
ethnolinguistic, cultural, and even religious diversities. It strives to free Philippine society of
the strain and wastage caused by the assimilationist approach. 46 Policies emanating from
the legislature are invariably assimilationist in character despite channels being open for
minority representation. As a result, democracy becomes an irony to the minority group. 47
Several commissioners echoed the pervasive sentiment in the plenary sessions in their own
inimitable way. Thus, Commissioner Blas Ople referred to the recognition that the Muslim
Mindanao and the Cordilleras "do not belong to the dominant national community" as the
justification for conferring on them a "measure of legal self-sufficiency, meaning self-
government, so that they will flourish politically, economically and culturally," with the hope
that after achieving parity with the rest of the country they would "give up their own
Josef Elvin Campos
autonomous region in favor of joining the national mainstream." 48 For his part, the Muslim
delegate, Commissioner Ahmad Alonto, spoke of the diversity of cultures as the framework
for nation-building.49 Finally, excerpts of the poignant plea of Commissioner Ponciano
Bennagen deserve to be quoted verbatim:
. . . They see regional autonomy as the answer to their centuries of struggle against
oppression and exploitation. For so long, their names and identities have been
debased. Their ancestral lands have been ransacked for their treasures, for their
wealth. Their cultures have been defiled, their very lives threatened, and worse,
extinguished, all in the name of national development; all in the name of public
interest; all in the name of common good; all in the name of the right to property; all
in the name of Regalian Doctrine; all in the name of national security. These phrases
have meant nothing to our indigenous communities, except for the violation of their
human rights.
...
Honorable Commissioners, we wish to impress upon you the gravity of the decision
to be made by every single one of us in this Commission. We have the
overwhelming support of the Bangsa Moro and the Cordillera Constitution. By this
we mean meaningful and authentic regional autonomy. We propose that we have a
separate Article on the autonomous regions for the Bangsa Moro and Cordillera
people clearly spelled out in this Constitution, instead of prolonging the agony of their
vigil and their struggle. This, too is a plea for national peace. Let us not pass the
buck to the Congress to decide on this. Let us not wash our hands of our
responsibility to attain national unity and peace and to settle this problem and rectify
past injustices, once and for all.50
The need for regional autonomy is more pressing in the case of the Filipino Muslims and the
Cordillera people who have been fighting for it. Their political struggle highlights their unique
cultures and the unresponsiveness of the unitary system to their aspirations. 51 The Moros'
struggle for self-determination dates as far back as the Spanish conquest in the Philippines.
Even at present, the struggle goes on.52
Perforce, regional autonomy is also a means towards solving existing serious peace and
order problems and secessionist movements. Parenthetically, autonomy, decentralization
and regionalization, in international law, have become politically acceptable answers to
intractable problems of nationalism, separatism, ethnic conflict and threat of secession. 53
However, the creation of autonomous regions does not signify the establishment of a
sovereignty distinct from that of the Republic, as it can be installed only "within the
framework of this Constitution and the national sovereignty as well as territorial integrity of
the Republic of the Philippines."54
Regional autonomy is the degree of self-determination exercised by the local government

unit vis-à-vis the central government.
In international law, the right to self-determination need not be understood as a right to

political separation, but rather as a complex net of legal-political relations between a certain
people and the state authorities. It ensures the right of peoples to the necessary level of
autonomy that would guarantee the support of their own cultural identity, the establishment
of priorities by the community's internal decision-making processes and the management of
collective matters by themselves.55
If self-determination is viewed as an end in itself reflecting a preference for homogeneous,

independent nation-states, it is incapable of universal application without massive
disruption. However, if self-determination is viewed as a means to an end—that end being a
democratic, participatory political and economic system in which the rights of individuals
and the identity of minority communities are protected—its continuing validity is more easily
perceived.56
Regional autonomy refers to the granting of basic internal government powers to the people
of a particular area or region with least control and supervision from the central
government.57
The objective of the autonomy system is to permit determined groups, with a common
tradition and shared social-cultural characteristics, to develop freely their ways of life and
heritage, exercise their rights, and be in charge of their own business. This is achieved
Josef Elvin Campos
through the establishment of a special governance regime for certain member communities
who choose their own authorities from within the community and exercise the jurisdictional
authority legally accorded to them to decide internal community affairs. 58
In the Philippine setting, regional autonomy implies the cultivation of more positive means
for national integration. It would remove the wariness among the Muslims, increase their
trust in the government and pave the way for the unhampered implementation of the
development programs in the region. 59 Again, even a glimpse of the deliberations of the
Constitutional Commission could lend a sense of the urgency and the inexorable appeal of
true decentralization:
MR. OPLE. . . . We are writing a Constitution, of course, for generations to come, not
only for the present but for our posterity. There is no harm in recognizing certain vital
pragmatic needs for national peace and solidarity, and the writing of this Constitution
just happens at a time when it is possible for this Commission to help the cause of
peace and reconciliation in Mindanao and the Cordilleras, by taking advantage of a
heaven-sent opportunity. . . . 60
...
MR. ABUBAKAR. . . . So in order to foreclose and convince the rest of the of the
Philippines that Mindanao autonomy will be granted to them as soon as possible,
more or less, to dissuade these armed men from going outside while Mindanao will
be under the control of the national government, let us establish an autonomous
Mindanao within our effort and capacity to do so within the shortest possible time.
This will be an answer to the Misuari clamor, not only for autonomy but for
independence.61
...
MR. OPLE. . . . The reason for this abbreviation of the period for the consideration of
the Congress of the organic acts and their passage is that we live in abnormal times.
In the case of Muslim Mindanao and the Cordilleras, we know that we deal with
questions of war and peace. These are momentous issues in which the territorial
integrity and the solidarity of this country are being put at stake, in a manner of
speaking.
We are writing a peace Constitution. We hope that the Article on Social Justice can
contribute to a climate of peace so that any civil strife in the countryside can be more
quickly and more justly resolved. We are providing for autonomous regions so that
we give constitutional permanence to the just demands and grievances of our own
fellow countrymen in the Cordilleras and in Mindanao. One hundred thousand lives
were lost in that struggle in Mindanao, and to this day, the Cordilleras is being
shaken by an armed struggle as well as a peaceful and militant struggle.
...
Rather than give opportunity to foreign bodies, no matter how sympathetic to the
Philippines, to contribute to the settlement of this issue, I think the Constitutional
Commission ought not to forego the opportunity to put the stamp of this Commission
through definitive action on the settlement of the problems that have nagged us and
our forefathers for so long.62
A necessary prerequisite of autonomy is decentralization. 63
Decentralization is a decision by the central government authorizing its subordinates,

whether geographically or functionally defined, to exercise authority in certain areas. It
involves decision-making by subnational units. It is typically a delegated power, wherein a
larger government chooses to delegate certain authority to more local governments.
Federalism implies some measure of decentralization, but unitary systems may also
decentralize. Decentralization differs intrinsically from federalism in that the sub-units that
have been authorized to act (by delegation) do not possess any claim of right against the
central government.64
Decentralization comes in two forms—deconcentration and devolution. Deconcentration is

administrative in nature; it involves the transfer of functions or the delegation of authority
and responsibility from the national office to the regional and local offices. This mode of
decentralization is also referred to as administrative decentralization. 65
Devolution, on the other hand, connotes political decentralization, or the transfer of powers,
responsibilities, and resources for the performance of certain functions from the central
government to local government units. 66 This is a more liberal form of decentralization since
Josef Elvin Campos
there is an actual transfer of powers and responsibilities. 67 It aims to grant greater autonomy
to local government units in cognizance of their right to self-government, to make them self-
reliant, and to improve their administrative and technical capabilities. 68
This Court elucidated the concept of autonomy in Limbona v. Mangelin, 69 thus:

Autonomy is either decentralization of administration or decentralization of power.
administrative powers to political subdivisions in order to broaden the base of
government power and in the process to make local governments "more responsive
and accountable," and "ensure their fullest development as self-reliant communities
and make them more effective partners in the pursuit of national development and
social progress." At the same time, it relieves the central government of the burden
of managing local affairs and enables it to concentrate on national concerns. The
President exercises "general supervision" over them, but only to "ensure that local
affairs are administered according to law." He has no control over their acts in the
sense that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political

power in the favor of local government units declared to be autonomous. In that
case, the autonomous government is free to chart its own destiny and shape its
future with minimum intervention from central authorities. According to a
constitutional author, decentralization of power amounts to "self-immolation," since in
that event the autonomous government becomes accountable not to the central
authorities but to its constituency.
In the case, the Court reviewed the expulsion of a member from the Sangguniang
Pampook, Autonomous Region. It held that the Court may assume jurisdiction as the local
government unit, organized before 1987, enjoys autonomy of the former category. It
refused, though, to resolve whether the grant of autonomy to Muslim Mindanao under the
1987 Constitution involves, truly, an effort to decentralize power rather than mere
administration.70
A year later, in Cordillera Broad Coalition v. Commission on Audit, 71 the Court, with the
same composition, ruled without any dissent that the creation of autonomous regions
contemplates the grant of political autonomy—an autonomy which is greater than the
administrative autonomy granted to local government units. It held that "the constitutional
guarantee of local autonomy in the Constitution (Art. X, Sec. 2) refers to administrative
autonomy of local government units or, cast in more technical language, the
decentralization of government authority…. On the other hand, the creation of autonomous
regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution,
contemplates the grant of political autonomy and not just administrative autonomy to these
regions."72
And by regional autonomy, the framers intended it to mean "meaningful and authentic
regional autonomy."73 As articulated by a Muslim author, substantial and meaningful
autonomy is "the kind of local self-government which allows the people of the region or area
the power to determine what is best for their growth and development without undue
interference or dictation from the central government." 74
To this end, Section 16, Article X75 limits the power of the President over autonomous
regions.76 In essence, the provision also curtails the power of Congress over autonomous
regions.77 Consequently, Congress will have to re-examine national laws and make sure
that they reflect the Constitution's adherence to local autonomy. And in case of conflicts, the
underlying spirit which should guide its resolution is the Constitution's desire for genuine
local autonomy.78
The diminution of Congress' powers over autonomous regions was confirmed in Ganzon v.
Court of Appeals,79 wherein this Court held that "the omission (of "as may be provided by
law") signifies nothing more than to underscore local governments' autonomy from
Congress and to break Congress' 'control' over local government affairs."
This is true to subjects over which autonomous regions have powers, as specified in
Sections 18 and 20, Article X of the 1987 Constitution. Expressly not included therein are
powers over certain areas. Worthy of note is that the area of public works is not excluded
and neither is it reserved for the National Government. The key provisions read, thus:
Josef Elvin Campos
SEC. 18. The Congress shall enact an organic act for each autonomous region with
the assistance and participation of the regional consultative commission composed
of representatives appointed by the President from a list of nominees from
multisectoral bodies. The organic act shall define the basic structure of government
for the region consisting of the executive department and legislative assembly, both
of which shall be elective and representative of the constituent political units. The
organic acts shall likewise provide for special courts with personal, family and
property law jurisdiction consistent with the provisions of the Constitution and
national laws.
The creation of the autonomous region shall be effective when approved by majority
of the votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region.
SEC. 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:
(4) Personal, family and property relations;
(9) Such other matters as may be authorized by law for the promotion of general
welfare of the people of the region. (Emphasis supplied)
E.O. 426 officially devolved the powers and functions of the DPWH in ARMM to the
Autonomous Regional Government (ARG). Sections 1 and 2 of E.O. 426 provide:
SECTION 1. Transfer of Control and Supervision. The offices of the Department of
Public Works and Highways (DPWH) within the Autonomous Region in Muslim
Mindanao (ARMM) including their functions, powers and responsibilities, personnel,
equipment, properties, budgets and liabilities are hereby placed under the control
and supervision of the Autonomous Regional Government.
In particular, these offices are identified as the four (4) District Engineering Offices
(DEO) in each of the four provinces respectively and the three (3) Area Equipment
Services (AES) located in Tawi-Tawi, Sulu and Maguindanao (Municipality of Sultan
Kudarat).
SEC. 2. Functions Transferred. The Autonomous Regional Government shall be
responsible for highways, flood control and water resource development systems, and other
public works within the ARMM and shall exercise the following functions:
1. Undertake and evaluate the planning, design, construction and works supervision
for the infrastructure projects whose location and impact are confined within the
ARMM;
2. Undertake the maintenance of infrastructure facilities within the ARMM and
supervise the maintenance of such local roads and other infrastructure facilities
receiving financial assistance from the National Government;
3. Ensure the implementation of laws, policies, programs, rules and regulations
regarding infrastructure projects as well as all public and private physical structures
within the ARMM;
4. Provide technical assistance related to their functions to other agencies within the
ARMM, especially the local government units;
5. Coordinate with other national and regional government departments, agencies,
institutions and organizations, especially the local government units within the
ARMM in the planning and implementation of infrastructure projects;
6. Conduct continuing consultations with the local communities, take appropriate
measures to make the services of the Autonomous Regional Government
responsive to the needs of the general public and recommend such appropriate
actions as may be necessary; and
7. Perform such other related duties and responsibilities within the ARMM as may be
assigned or delegated by the Regional Governor or as may be provided by law.
(Emphasis supplied)
Josef Elvin Campos
More importantly, Congress itself through R.A. 9054 transferred and devolved the
administrative and fiscal management of public works and funds for public works to the
ARG. Section 20, Article VI of R.A. 9054 provides:
ARTICLE VI
THE LEGISLATIVE DEPARTMENT
…
SEC. 20. Annual Budget and Infrastructure Funds. – The annual budget of
the Regional Government shall be enacted by Regional Assembly. Funds for
infrastructure in the autonomous region allocated by the central government
or national government shall be appropriated through a Regional Assembly
Public Works Act.
Unless approved by the Regional Assembly, no public works funds allocated
by the central government or national government for the Regional
Government or allocated by the Regional Government from its own revenues
may be disbursed, distributed, realigned, or used in any manner.
The aim of the Constitution is to extend to the autonomous peoples, the people of
Muslim Mindanao in this case, the right to self-determination—a right to choose their
own path of development; the right to determine the political, cultural and economic
content of their development path within the framework of the sovereignty and
territorial integrity of the Philippine Republic. 80 Self-determination refers to the need
for a political structure that will respect the autonomous peoples' uniqueness and
grant them sufficient room for self-expression and self-construction. 81
In treading their chosen path of development, the Muslims in Mindanao are to be
given freedom and independence with minimum interference from the National
Government. This necessarily includes the freedom to decide on, build, supervise
and maintain the public works and infrastructure projects within the autonomous
region. The devolution of the powers and functions of the DPWH in the ARMM and
transfer of the administrative and fiscal management of public works and funds to the
ARG are meant to be true, meaningful and unfettered. This unassailable conclusion
is grounded on a clear consensus, reached at the Constitutional Commission and
ratified by the entire Filipino electorate, on the centrality of decentralization of power
as the appropriate vessel of deliverance for Muslim Filipinos and the ultimate unity of
Muslims and Christians in this country.
With R.A. 8999, however, this freedom is taken away, and the National Government
takes control again. The hands, once more, of the autonomous peoples are reined in
and tied up.
The challenged law creates an office with functions and powers which, by virtue of
E.O. 426, have been previously devolved to the DPWH-ARMM, First Engineering
District in Lanao del Sur.
E.O. 426 clearly ordains the transfer of the control and supervision of the offices of
the DPWH within the ARMM, including their functions, powers and responsibilities,
personnel, equipment, properties, and budgets to the ARG. Among its other
functions, the DPWH-ARMM, under the control of the Regional Government shall be
responsible for highways, flood control and water resource development systems,
and other public works within the ARMM. Its scope of power includes the planning,
design, construction and supervision of public works. According to R.A. 9054, the
reach of the Regional Government enables it to appropriate, manage and disburse
all public work funds allocated for the region by the central government.
The use of the word "powers" in E.O. 426 manifests an unmistakable case of
devolution.
In this regard, it is not amiss to cite Opinion No. 120, S. 1991 82 of the Secretary of
Justice on whether the national departments or their counterpart departments in the
ARG are responsible for implementation of roads, rural water supply, health,
education, women in development, agricultural extension and watershed
management. Referring to Section 2, Article V of R.A. 6734 which enumerates the
powers of the ARG, he states:
It is clear from the foregoing provision of law that except for the areas of executive
power mentioned therein, all other such areas shall be exercised by the Autonomous
Regional Government ("ARG") of the Autonomous Region in Muslim Mindanao. It is
noted that programs relative to infrastructure facilities, health, education, women in
development, agricultural extension and watershed management do not fall under
any of the exempted areas listed in the abovequoted provision of law. Thus, the
Josef Elvin Campos
inevitable conclusion is that all these spheres of executive responsibility have been
transferred to the ARG.
Reinforcing the aboveview (sic) are the various executive orders issued by the
President providing for the devolution of the powers and functions of specified
executive departments of the National Government to the ARG. These are E.O. Nos.
425 (Department of Labor and Employment, Local Government, Tourism,
Environment and Natural Resources, Social Welfare and Development and Science
and Technology), 426 (Department of Public Works and Highways), 459
(Department of Education, Culture and Sports) and 460 (Department of Agriculture).
The execution of projects on infrastructure, education, women, agricultural extension
and watershed management within the Autonomous Region of Muslim Mindanao
normally fall within the responsibility of one of the aforementioned executive
departments of the National Government, but by virtue of the aforestated EOs, such
responsibility has been transferred to the ARG.
E.O. 426 was issued to implement the provisions of the first ARMM Organic Act, R.A. 6734
—the validity of which this Court upheld in the case of Abbas v. Commission on
Elections.83 In Section 4, Article XVIII of said Act, "central government or national
government offices and agencies in the autonomous region which are not excluded under
Section 3, Article IV 84 of this Organic Act, shall be placed under the control and supervision
of the Regional Government pursuant to a schedule prescribed by the oversight committee."
Evidently, the intention is to cede some, if not most, of the powers of the national
government to the autonomous government in order to effectuate a veritable autonomy. The
continued enforcement of R.A. 8999, therefore, runs afoul of the ARMM Organic Acts and
results in the recall of powers which have previously been handed over. This should not be
sanctioned, elsewise the Organic Acts' desire for greater autonomy for the ARMM in
accordance with the Constitution would be quelled. It bears stressing that national laws are
subject to the Constitution one of whose state policies is to ensure the autonomy of
autonomous regions. Section 25, Article II of the 1987 Constitution states:
Sec. 25. The State shall ensure the autonomy of local governments.
R.A. 8999 has made the DPWH-ARMM effete and rendered regional autonomy illusory with
respect to infrastructure projects. The Congressional Record shows, on the other hand, that
the "lack of an implementing and monitoring body within the area" has hindered the speedy
implementation, of infrastructure projects. 85 Apparently, in the legislature's estimation, the
existing DPWH-ARMM engineering districts failed to measure up to the task. But if it was
indeed the case, the problem could not be solved through the simple legislative creation of
an incongruous engineering district for the central government in the ARMM. As it was,
House Bill No. 995 which ultimately became R.A. 8999 was passed in record time on
second reading (not more than 10 minutes), absolutely without the usual sponsorship
speech and debates.86 The precipitate speed which characterized the passage of R.A. 8999
is difficult to comprehend since R.A. 8999 could have resulted in the amendment of the first
ARMM Organic Act and, therefore, could not take effect without first being ratified in a
plebiscite. What is more baffling is that in March 2001, or barely two (2) months after it
enacted R.A. 8999 in January 2001, Congress passed R.A. 9054, the second ARMM
Organic Act, where it reaffirmed the devolution of the DPWH in ARMM, including Lanao del
Sur and Marawi City, to the Regional Government and effectively repealed R.A. 8999.
DPWH Department Order No. 119
Now, the question directly related to D.O. 119.
D.O. 119 creating the Marawi Sub-District Engineering Office which has jurisdiction over
infrastructure projects within Marawi City and Lanao del Sur is violative of the provisions of
E.O. 426. The Executive Order was issued pursuant to R.A. 6734—which initiated the
creation of the constitutionally-mandated autonomous region 87 and which defined the basic
structure of the autonomous government. 88 E.O. 426 sought to implement the transfer of the
control and supervision of the DPWH within the ARMM to the Autonomous Regional
Government. In particular, it identified four (4) District Engineering Offices in each of the
four (4) provinces, namely: Lanao del Sur, Maguindanao, Sulu and Tawi-
Tawi.89 Accordingly, the First Engineering District of the DPWH-ARMM in Lanao del Sur has
jurisdiction over the public works within the province.
The office created under D.O. 119, having essentially the same powers, is a duplication of
the DPWH-ARMM First Engineering District in Lanao del Sur formed under the aegis of
E.O. 426. The department order, in effect, takes back powers which have been previously
devolved under the said executive order. D.O. 119 runs counter to the provisions of E.O.
Josef Elvin Campos
426. The DPWH's order, like spring water, cannot rise higher than its source of power—the
Executive.
The fact that the department order was issued pursuant to E.O. 124—signed and approved
by President Aquino in her residual legislative powers—is of no moment. It is a finely-
imbedded principle in statutory construction that a special provision or law prevails over a
general one.90 Lex specialis derogant generali. As this Court expressed in the case of
Leveriza v. Intermediate Appellate Court, 91 "another basic principle of statutory construction
mandates that general legislation must give way to special legislation on the same subject,
and generally be so interpreted as to embrace only cases in which the special provisions
are not applicable, that specific statute prevails over a general statute and that where two
statutes are of equal theoretical application to a particular case, the one designed therefor
specially should prevail."
E.O. No. 124, upon which D.O. 119 is based, is a general law reorganizing the Ministry of
Public Works and Highways while E.O. 426 is a special law transferring the control and
supervision of the DPWH offices within ARMM to the Autonomous Regional Government.
The latter statute specifically applies to DPWH-ARMM offices. E.O. 124 should therefore
give way to E.O. 426 in the instant case.
In any event, the ARMM Organic Acts and their ratification in a plebiscite in effect
superseded E.O. 124. In case of an irreconcilable conflict between two laws of different
vintages, the later enactment prevails because it is the later legislative will. 92
Further, in its repealing clause, R.A. 9054 states that "all laws, decrees, orders, rules and
regulations, and other issuances or parts thereof, which are inconsistent with this Organic
Act, are hereby repealed or modified accordingly." 93 With the repeal of E.O. 124 which is the
basis of D.O. 119, it necessarily follows that D.O. 119 was also rendered functus officio by
the ARMM Organic Acts.
Grave abuse of discretion

Without doubt, respondents committed grave abuse of discretion. They implemented R.A.
8999 despite its inoperativeness and repeal. They also put in place and maintained the
DPWH Marawi Sub-District Engineering Office in accordance with D.O. 119 which has been
rendered functus officio by the ARMM Organic Acts.
Still, on the issue of grave abuse of discretion, this Court, however, cannot uphold
petitioners' argument that R.A. 8999 was signed into law under suspicious circumstances to
support the assertion that there was a capricious and whimsical exercise of legislative
authority. Once more, this Court cannot inquire into the wisdom, merits, propriety or
expediency of the acts of the legislative branch.
Likewise, the alleged lack of consultation or public hearing with the affected agency during
the inception of the law does not render the law infirm. This Court holds that the Congress
did not transgress the Constitution nor any statute or House Rule in failing to invite a
resource person from the DPWH-ARMM during the Committee meeting. Section 27, Rule
VII of the Rules of the House94 only requires that a written notice be given to all the
members of a Committee seven (7) calendar days before a regularly scheduled meeting,
specifying the subject matter of the meeting and the names of the invited resource persons.
And it must be emphasized that the questions of who to invite and whether there is a need
to invite resource persons during Committee meetings should be addressed solely to
Congress in its plenary legislative powers.95
Conclusion
The repeal of R.A. 8999 and the functus officio state of D.O. 119 provide the necessary
basis for the grant of the writs of certiorari and prohibition sought by the petitioners.
However, there is no similar basis for the issuance of a writ of mandamus to compel
respondent DBM Secretary to release funds appropriated for public works projects in
Marawi City and Lanao del Sur to the DPWH-ARMM First Engineering District in Lanao del
Sur and to compel respondent DPWH Secretary to allow the DPWH-ARMM, First
Engineering District in Lanao del Sur to implement all public works projects within its
jurisdictional area. Section 20, Article VI of R.A. 9054 clearly provides that "(f)unds for
Josef Elvin Campos
infrastructure in the autonomous region allocated by the central government or national
government shall only be appropriated through a Regional Assembly Public Works Act"
passed by the Regional Assembly. There is no showing that such Regional Assembly
Public Works Act has been enacted.
WHEREFORE, considering that Republic Act No. 9054 repealed Republic Act No. 8999 and
rendered DPWH Department Order No. 119 functus officio, the petition insofar as it seeks
the writs of certiorari and prohibition is GRANTED. Accordingly, let a writ of prohibition
ISSUE commanding respondents to desist from implementing R.A. 8999 and D.O. 119, and
maintaining the DPWH Marawi Sub-District Engineering Office and the First Engineering
District of the Province of Lanao del Sur comprising the City of Marawi and the
municipalities within the First District of Lanao del Sur. However, the petition insofar as it
seeks a writ of mandamus against respondents is DENIED.
No costs.
SO ORDERED.
Puno, (Acting C.J.), Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,

Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, and Garcia,
JJ., concur.
Davide, Jr., C.J., on official leave.
Corona, J., on leave.
Batangas CATV, Inc. v. Court of Appeals (G.R. No. 138810, 29

September 2004)
G.R. No. 138810 September 29, 2004
BATANGAS CATV, INC., petitioner,
vs.
THE COURT OF APPEALS, THE BATANGAS CITY SANGGUNIANG PANLUNGSOD
and BATANGAS CITY MAYOR, respondents.
DECISION
In the late 1940s, John Walson, an appliance dealer in Pennsylvania, suffered a decline in
the sale of television (tv) sets because of poor reception of signals in his community.
Troubled, he built an antenna on top of a nearby mountain. Using coaxial cable lines, he
distributed the tv signals from the antenna to the homes of his customers. Walson’s
innovative idea improved his sales and at the same time gave birth to a new
telecommunication system -- the Community Antenna Television (CATV) or Cable
Television.1
This technological breakthrough found its way in our shores and, like in its country of origin,
it spawned legal controversies, especially in the field of regulation. The case at bar is just
another occasion to clarify a shady area. Here, we are tasked to resolve the inquiry -- may a
local government unit (LGU) regulate the subscriber rates charged by CATV operators
within its territorial jurisdiction?
This is a petition for review on certiorari filed by Batangas CATV, Inc. (petitioner herein)
against the Sangguniang Panlungsod and the Mayor of Batangas City (respondents herein)
assailing the Court of Appeals (1) Decision2 dated February 12, 1999
and (2) Resolution dated May 26, 1999, in CA-G.R. CV No. 52361. 4 The Appellate Court
3
reversed and set aside the Judgment 5 dated October 29, 1995 of the Regional Trial Court
(RTC), Branch 7, Batangas City in Civil Case No. 4254, 6 holding that neither of the
respondents has the power to fix the subscriber rates of CATV operators, such being
outside the scope of the LGU’s power.
The antecedent facts are as follows:
On July 28, 1986, respondent Sangguniang Panlungsod enacted Resolution No.
2107 granting petitioner a permit to construct, install, and operate a CATV system in
Batangas City. Section 8 of the Resolution provides that petitioner is authorized to
charge its subscribers the maximum rates specified therein, "provided, however, that
any increase of rates shall be subject to the approval of the Sangguniang
Panlungsod."8
Sometime in November 1993, petitioner increased its subscriber rates from ₱88.00 to
₱180.00 per month. As a result, respondent Mayor wrote petitioner a letter 9 threatening to
Josef Elvin Campos
cancel its permit unless it secures the approval of respondent Sangguniang Panlungsod,
pursuant to Resolution No. 210.
Petitioner then filed with the RTC, Branch 7, Batangas City, a petition for injunction
docketed as Civil Case No. 4254. It alleged that respondent Sangguniang Panlungsod has
no authority to regulate the subscriber rates charged by CATV operators because under
Executive Order No. 205, the National Telecommunications Commission (NTC) has the
sole authority to regulate the CATV operation in the Philippines.
On October 29, 1995, the trial court decided in favor of petitioner, thus:
"WHEREFORE, as prayed for, the defendants, their representatives, agents,
deputies or other persons acting on their behalf or under their instructions, are
hereby enjoined from canceling plaintiff’s permit to operate a Cable Antenna
Television (CATV) system in the City of Batangas or its environs or in any
manner, from interfering with the authority and power of the National
Telecommunications Commission to grant franchises to operate CATV
systems to qualified applicants, and the right of plaintiff in fixing its service
rates which needs no prior approval of the Sangguniang Panlungsod of
Batangas City.
The counterclaim of the plaintiff is hereby dismissed. No pronouncement as to costs.
IT IS SO ORDERED."10
The trial court held that the enactment of Resolution No. 210 by respondent violates the
State’s deregulation policy as set forth by then NTC Commissioner Jose Luis A. Alcuaz in
his Memorandum dated August 25, 1989. Also, it pointed out that the sole agency of the
government which can regulate CATV operation is the NTC, and that the LGUs cannot
exercise regulatory power over it without appropriate legislation.
Unsatisfied, respondents elevated the case to the Court of Appeals, docketed as CA-G.R.
CV No. 52361.
On February 12, 1999, the Appellate Court reversed and set aside the trial court’s Decision,
ratiocinating as follows:
"Although the Certificate of Authority to operate a Cable Antenna Television
(CATV) System is granted by the National Telecommunications Commission
pursuant to Executive Order No. 205, this does not preclude the Sangguniang
Panlungsod from regulating the operation of the CATV in their locality under
the powers vested upon it by Batas Pambansa Bilang 337, otherwise known as
the Local Government Code of 1983. Section 177 (now Section 457 paragraph
3 (ii) of Republic Act 7160) provides:
‘Section 177. Powers and Duties – The Sangguniang Panlungsod shall:
a) Enact such ordinances as may be necessary to carry into effect and
discharge the responsibilities conferred upon it by law, and such as
shall be necessary and proper to provide for health and safety, comfort
and convenience, maintain peace and order, improve the morals, and
promote the prosperity and general welfare of the community and the
inhabitants thereof, and the protection of property therein;
xxx
d) Regulate, fix the license fee for, and tax any business or profession
being carried on and exercised within the territorial jurisdiction of the
city, except travel agencies, tourist guides, tourist transports, hotels,
resorts, de luxe restaurants, and tourist inns of international standards
which shall remain under the licensing and regulatory power of the
Ministry of Tourism which shall exercise such authority without
infringement on the taxing and regulatory powers of the city
government;’
Under cover of the General Welfare Clause as provided in this section, Local
Government Units can perform just about any power that will benefit their
constituencies. Thus, local government units can exercise powers that
are: (1) expressly granted; (2) necessarily implied from the power that is expressly
granted; (3) necessary, appropriate or incidental for its efficient and effective
governance; and (4) essential to the promotion of the general welfare of their
inhabitants. (Pimentel, The Local Government Code of 1991, p. 46)
Verily, the regulation of businesses in the locality is expressly provided in the
Local Government Code. The fixing of service rates is lawful under the General
Welfare Clause.
Resolution No. 210 granting appellee a permit to construct, install and operate a
community antenna television (CATV) system in Batangas City as quoted earlier in
Josef Elvin Campos
this decision, authorized the grantee to impose charges which cannot be increased
except upon approval of the Sangguniang Bayan. It further provided that in case of
violation by the grantee of the terms and conditions/requirements specifically
provided therein, the City shall have the right to withdraw the franchise.
Appellee increased the service rates from EIGHTY EIGHT PESOS (₱88.00) to ONE
HUNDRED EIGHTY PESOS (₱180.00) (Records, p. 25) without the approval of
appellant. Such act breached Resolution No. 210 which gives appellant the
right to withdraw the permit granted to appellee."11
Petitioner filed a motion for reconsideration but was denied. 12
Hence, the instant petition for review on certiorari anchored on the following assignments of
error:
"I
THE COURT OF APPEALS ERRED IN HOLDING THAT THE GENERAL
WELFARE CLAUSE of the LOCAL GOVERNMENT CODE AUTHORIZES
RESPONDENT SANGGUNIANG PANLUNGSOD TO EXERCISE THE
REGULATORY FUNCTION SOLELY LODGED WITH THE NATIONAL
TELECOMMUNICATIONS COMMISSION UNDER EXECUTIVE ORDER NO. 205,
INCLUDING THE AUTHORITY TO FIX AND/OR APPROVE THE SERVICE RATES
OF CATV OPERATORS; AND
II
THE COURT OF APPEALS ERRED IN REVERSING THE DECISION APPEALED
FROM AND DISMISSING PETITIONER’S COMPLAINT."13
Petitioner contends that while Republic Act No. 7160, the Local Government Code of 1991,
extends to the LGUs the general power to perform any act that will benefit their
constituents, nonetheless, it does not authorize them to regulate the CATV operation.
Pursuant to E.O. No. 205, only the NTC has the authority to regulate the CATV operation,
including the fixing of subscriber rates.
Respondents counter that the Appellate Court did not commit any reversible error in
rendering the assailed Decision. First, Resolution No. 210 was enacted pursuant to Section
177(c) and (d) of Batas Pambansa Bilang 337, the Local Government Code of 1983, which
authorizes LGUs to regulate businesses. The term "businesses" necessarily includes the
CATV industry. And second, Resolution No. 210 is in the nature of a contract between
petitioner and respondents, it being a grant to the former of a franchise to operate a CATV
system. To hold that E.O. No. 205 amended its terms would violate the constitutional
prohibition against impairment of contracts. 14
The petition is impressed with merit.
Earlier, we posed the question -- may a local government unit (LGU) regulate the subscriber
rates charged by CATV operators within its territorial jurisdiction? A review of pertinent laws
and jurisprudence yields a negative answer.
President Ferdinand E. Marcos was the first one to place the CATV industry under the
regulatory power of the national government. 15 On June 11, 1978, he issued Presidential
Decree (P.D.) No. 151216 establishing a monopoly of the industry by granting Sining
Makulay, Inc., an exclusive franchise to operate CATV system in any place within the
Philippines. Accordingly, it terminated all franchises, permits or certificates for the operation
of CATV system previously granted by local governments or by any instrumentality or
agency of the national government.17 Likewise, it prescribed the subscriber rates to be
charged by Sining Makulay, Inc. to its customers.18
On July 21, 1979, President Marcos issued Letter of Instruction (LOI) No. 894 vesting upon
the Chairman of the Board of Communications direct supervision over the operations of
Sining Makulay, Inc. Three days after, he issued E.O. No. 546 19 integrating the Board of
Communications20 and the Telecommunications Control Bureau 21 to form a single entity to
be known as the "National Telecommunications Commission." Two of its assigned functions
are:
"a. Issue Certificate of Public Convenience for the operation of communications
utilities and services, radio communications systems, wire or wireless telephone or
telegraph systems, radio and television broadcasting system and other similar public
utilities;
b. Establish, prescribe and regulate areas of operation of particular operators of
public service communications; and determine and prescribe charges or rates
pertinent to the operation of such public utility facilities and services except in cases
where charges or rates are established by international bodies or associations of
which the Philippines is a participating member or by bodies recognized by the
Philippine Government as the proper arbiter of such charges or rates;"
Josef Elvin Campos
Although Sining Makulay Inc.’s exclusive franchise had a life term of 25 years, it was cut
short by the advent of the 1986 Revolution. Upon President Corazon C. Aquino’s
assumption of power, she issued E.O. No. 20522 opening the CATV industry to all citizens of
the Philippines. It mandated the NTC to grant Certificates of Authority to CATV
operators and to issue the necessary implementing rules and regulations.
On September 9, 1997, President Fidel V. Ramos issued E.O. No. 43623 prescribing policy
guidelines to govern CATV operation in the Philippines. Cast in more definitive terms, it
restated the NTC’s regulatory powers over CATV operations, thus:
"SECTION 2. The regulation and supervision of the cable television industry in the

Philippines shall remain vested solely with the National Telecommunications
Commission (NTC).
SECTION 3. Only persons, associations, partnerships, corporations or cooperatives,

granted a Provisional Authority or Certificate of Authority by the Commission may
install, operate and maintain a cable television system or render cable television
service within a service area."
Clearly, it has been more than two decades now since our national government, through the
NTC, assumed regulatory power over the CATV industry. Changes in the political arena did
not alter the trend. Instead, subsequent presidential issuances further reinforced the NTC’s
power. Significantly, President Marcos and President Aquino, in the exercise of their
legislative power, issued P.D. No. 1512, E.O. No. 546 and E.O. No. 205. Hence, they have
the force and effect of statutes or laws passed by Congress. 24 That the regulatory power
stays with the NTC is also clear from President Ramos’ E.O. No. 436 mandating that the
regulation and supervision of the CATV industry shall remain vested "solely" in the NTC.
Black’s Law Dictionary defines "sole" as "without another or others." 25 The logical
conclusion, therefore, is that in light of the above laws and E.O. No. 436, the NTC
exercises regulatory power over CATV operators to the exclusion of other bodies.
But, lest we be misunderstood, nothing herein should be interpreted as to strip LGUs of

their general power to prescribe regulations under the general welfare clause of the Local
Government Code. It must be emphasized that when E.O. No. 436 decrees that the
"regulatory power" shall be vested "solely" in the NTC, it pertains to the "regulatory power"
over those matters which are peculiarly within the NTC’s competence, such as, the: (1)
determination of rates, (2) issuance of "certificates of authority, (3) establishment of areas of
operation, (4) examination and assessment of the legal, technical and financial
qualifications of applicant operators, (5) granting of permits for the use of frequencies, (6)
regulation of ownership and operation, (7) adjudication of issues arising from its functions,
and (8) other similar matters. 26 Within these areas, the NTC reigns supreme as it possesses
the exclusive power to regulate -- a power comprising varied acts, such as "to fix, establish,
or control; to adjust by rule, method or established mode; to direct by rule or restriction; or to
subject to governing principles or laws." 27
Coincidentally, respondents justify their exercise of regulatory power over petitioner’s CATV
operation under the general welfare clause of the Local Government Code of 1983. The
Court of Appeals sustained their stance.
There is no dispute that respondent Sangguniang Panlungsod, like other local legislative
bodies, has been empowered to enact ordinances and approve resolutions under the
general welfare clause of B.P. Blg. 337, the Local Government Code of 1983. That it
continues to posses such power is clear under the new law, R.A. No. 7160 (the Local
Government Code of 1991). Section 16 thereof provides:
"SECTION 16. General Welfare. – Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among others, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant, scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
Josef Elvin Campos
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants."
In addition, Section 458 of the same Code specifically mandates:
"SECTION 458. Powers, Duties, Functions and Compensation. — (a)
The Sangguniang Panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare of the
city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise
of the corporate powers of the city as provided for under Section 22 of this Code, x x
x:"
The general welfare clause is the delegation in statutory form of the police power of
the State to LGUs.28 Through this, LGUs may prescribe regulations to protect the lives,
health, and property of their constituents and maintain peace and order within their
respective territorial jurisdictions. Accordingly, we have upheld enactments providing, for
instance, the regulation of gambling, 29 the occupation of rig drivers, 30 the installation and
operation of pinball machines,31 the maintenance and operation of cockpits, 32 the
exhumation and transfer of corpses from public burial grounds, 33 and the operation of
hotels, motels, and lodging houses34 as valid exercises by local legislatures of the police
power under the general welfare clause.
Like any other enterprise, CATV operation maybe regulated by LGUs under the general
welfare clause. This is primarily because the CATV system commits the indiscretion of
crossing public properties. (It uses public properties in order to reach subscribers.) The
physical realities of constructing CATV system – the use of public streets, rights of ways,
the founding of structures, and the parceling of large regions – allow an LGU a certain
degree of regulation over CATV operators.35 This is the same regulation that it exercises
over all private enterprises within its territory.
But, while we recognize the LGUs’ power under the general welfare clause, we cannot
sustain Resolution No. 210. We are convinced that respondents strayed from the well
recognized limits of its power. The flaws in Resolution No. 210 are: (1) it violates the
mandate of existing laws and (2) it violates the State’s deregulation policy over the CATV
industry.
I.
Resolution No. 210 is an enactment of an LGU acting only as agent of the national
legislature. Necessarily, its act must reflect and conform to the will of its principal. To test its
validity, we must apply the particular requisites of a valid ordinance as laid down by the
accepted principles governing municipal corporations. 36
Speaking for the Court in the leading case of United States vs. Abendan, 37 Justice Moreland
said: "An ordinance enacted by virtue of the general welfare clause is valid, unless it
contravenes the fundamental law of the Philippine Islands, or an Act of the Philippine
Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial,
discriminating, or in derogation of common right." In De la Cruz vs. Paraz, 38 we laid the
general rule "that ordinances passed by virtue of the implied power found in the general
welfare clause must be reasonable, consonant with the general powers and purposes of the
corporation, and not inconsistent with the laws or policy of the State."
The apparent defect in Resolution No. 210 is that it contravenes E.O. No. 205 and E.O. No.
436 insofar as it permits respondent Sangguniang Panlungsod to usurp a power exclusively
vested in the NTC, i.e., the power to fix the subscriber rates charged by CATV operators. As
earlier discussed, the fixing of subscriber rates is definitely one of the matters within the
NTC’s exclusive domain.
In this regard, it is appropriate to stress that where the state legislature has made provision
for the regulation of conduct, it has manifested its intention that the subject matter shall be
fully covered by the statute, and that a municipality, under its general powers, cannot
regulate the same conduct.39 In Keller vs. State,40 it was held that: "Where there is no
express power in the charter of a municipality authorizing it to adopt ordinances regulating
certain matters which are specifically covered by a general statute, a municipal ordinance,
insofar as it attempts to regulate the subject which is completely covered by a general
statute of the legislature, may be rendered invalid. x x x Where the subject is of statewide
concern, and the legislature has appropriated the field and declared the rule, its declaration
is binding throughout the State." A reason advanced for this view is that such ordinances
are in excess of the powers granted to the municipal corporation. 41
Josef Elvin Campos
Since E.O. No. 205, a general law, mandates that the regulation of CATV operations shall
be exercised by the NTC, an LGU cannot enact an ordinance or approve a resolution in
violation of the said law.
It is a fundamental principle that municipal ordinances are inferior in status and subordinate
to the laws of the state. An ordinance in conflict with a state law of general character and
statewide application is universally held to be invalid. 42 The principle is frequently expressed
in the declaration that municipal authorities, under a general grant of power, cannot adopt
ordinances which infringe the spirit of a state law or repugnant to the general policy of the
state.43 In every power to pass ordinances given to a municipality, there is an implied
restriction that the ordinances shall be consistent with the general law. 44 In the language of
Justice Isagani Cruz (ret.), this Court, in Magtajas vs. Pryce Properties Corp., Inc.,45 ruled
that:
"The rationale of the requirement that the ordinances should not contravene a
statute is obvious. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers conferred on
them by Congress as the national lawmaking body. The delegate cannot be superior
to the principal or exercise powers higher than those of the latter. It is a heresy to
suggest that the local government units can undo the acts of Congress, from which
they have derived their power in the first place, and negate by mere ordinance the
mandate of the statute.
‘Municipal corporations owe their origin to, and derive their powers and rights
wholly from the legislature. It breathes into them the breath of life, without
which they cannot exist. As it creates, so it may destroy. As it may destroy, it
may abridge and control. Unless there is some constitutional limitation on the
right, the legislature might, by a single act, and if we can suppose it capable
of so great a folly and so great a wrong, sweep from existence all of the
municipal corporations in the State, and the corporation could not prevent it.
We know of no limitation on the right so far as to the corporation themselves
are concerned. They are, so to phrase it, the mere tenants at will of the
legislature.’
This basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening
the policy of local autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units although in
significantly reduced degree now than under our previous Constitutions. The power
to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power to
tax, which cannot now be withdrawn by mere statute. By and large, however, the
national legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it."
Respondents have an ingenious retort against the above disquisition. Their theory is that
the regulatory power of the LGUs is granted by R.A. No. 7160 (the Local Government Code
of 1991), a handiwork of the national lawmaking authority. They contend that R.A. No. 7160
repealed E.O. No. 205 (issued by President Aquino). Respondents’ argument espouses a
bad precedent. To say that LGUs exercise the same regulatory power over matters which
are peculiarly within the NTC’s competence is to promote a scenario of LGUs and the NTC
locked in constant clash over the appropriate regulatory measure on the same subject
matter. LGUs must recognize that technical matters concerning CATV operation are
within the exclusive regulatory power of the NTC.
At any rate, we find no basis to conclude that R.A. No. 7160 repealed E.O. No. 205, either
expressly or impliedly. It is noteworthy that R.A. No. 7160 repealing clause, which
painstakingly mentions the specific laws or the parts thereof which are repealed, does not
include E.O. No. 205, thus:
"SECTION 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise

known as the Local Government Code." Executive Order No. 112 (1987), and
Executive Order No. 319 (1988) are hereby repealed.
Josef Elvin Campos
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders,
instructions, memoranda and issuances related to or concerning the barangay are
hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding
hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the
Special Education Fund; Presidential Decree No. 144 as amended by Presidential
Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential
Decree No. 436 as amended by Presidential Decree No. 558; and Presidential
Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and
rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-
funded projects.
(e) The following provisions are hereby repealed or amended insofar as they are
inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential
Decree No. 704; Section 12 of Presidential Decree No. 87, as amended; Sections
52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as
amended; and Section 16 of Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly."
Neither is there an indication that E.O. No. 205 was impliedly repealed by R.A. No. 7160. It
is a settled rule that implied repeals are not lightly presumed in the absence of a clear and
unmistakable showing of such intentions. In Mecano vs. Commission on Audit, 46 we ruled:
"Repeal by implication proceeds on the premise that where a statute of later date
clearly reveals an intention on the part of the legislature to abrogate a prior act on
the subject, that intention must be given effect. Hence, before there can be a repeal,
there must be a clear showing on the part of the lawmaker that the intent in enacting
the new law was to abrogate the old one. The intention to repeal must be clear and
manifest; otherwise, at least, as a general rule, the later act is to be construed as a
continuation of, and not a substitute for, the first act and will continue so far as the
two acts are the same from the time of the first enactment."
As previously stated, E.O. No. 436 (issued by President Ramos) vests upon the NTC the
power to regulate the CATV operation in this country. So also Memorandum Circular No. 8-
9-95, the Implementing Rules and Regulations of R.A. No. 7925 (the "Public
Telecommunications Policy Act of the Philippines"). This shows that the NTC’s regulatory
power over CATV operation is continuously recognized.
It is a canon of legal hermeneutics that instead of pitting one statute against another in an
inevitably destructive confrontation, courts must exert every effort to reconcile them,
remembering that both laws deserve a becoming respect as the handiwork of coordinate
branches of the government.47 On the assumption of a conflict between E.O. No. 205 and
R.A. No. 7160, the proper action is not to uphold one and annul the other but to give effect
to both by harmonizing them if possible. This recourse finds application here. Thus, we hold
that the NTC, under E.O. No. 205, has exclusive jurisdiction over matters affecting CATV
operation, including specifically the fixing of subscriber rates, but nothing herein precludes
LGUs from exercising its general power, under R.A. No. 7160, to prescribe regulations to
promote the health, morals, peace, education, good order or safety and general welfare of
their constituents. In effect, both laws become equally effective and mutually
complementary.
The grant of regulatory power to the NTC is easily understandable. CATV system is not a
mere local concern. The complexities that characterize this new technology demand that it
be regulated by a specialized agency. This is particularly true in the area of rate-fixing. Rate
fixing involves a series of technical operations. 48 Consequently, on the hands of the
regulatory body lies the ample discretion in the choice of such rational processes as might
be appropriate to the solution of its highly complicated and technical problems. Considering
that the CATV industry is so technical a field, we believe that the NTC, a specialized
agency, is in a better position than the LGU, to regulate it. Notably, in United States vs.
Southwestern Cable Co.,49 the US Supreme Court affirmed the Federal Communications
Commission’s (FCC’s) jurisdiction over CATV operation. The Court held that the FCC’s
Josef Elvin Campos
authority over cable systems assures the preservation of the local broadcast service and an
equitable distribution of broadcast services among the various regions of the country.
II.
Resolution No. 210 violated the State’s deregulation policy.
Deregulation is the reduction of government regulation of business to permit freer markets
and competition.50 Oftentimes, the State, through its regulatory agencies, carries out a
policy of deregulation to attain certain objectives or to address certain problems. In the field
of telecommunications, it is recognized that many areas in the Philippines are still
"unserved" or "underserved." Thus, to encourage private sectors to venture in this field and
be partners of the government in stimulating the growth and development of
telecommunications, the State promoted the policy of deregulation.
In the United States, the country where CATV originated, the Congress observed, when it
adopted the Telecommunications Act of 1996, that there was a need to provide a pro-
competitive, deregulatory national policy framework designed to accelerate rapidly private
sector deployment of advanced telecommunications and information technologies and
services to all Americans by opening all telecommunications markets to competition. The
FCC has adopted regulations to implement the requirements of the 1996 Act and the intent
of the Congress.
Our country follows the same policy. The fifth Whereas Clause of E.O. No. 436 states:
"WHEREAS, professionalism and self-regulation among existing operators, through
a nationally recognized cable television operator’s association, have enhanced the
growth of the cable television industry and must therefore be maintained along with
minimal reasonable government regulations;"
This policy reaffirms the NTC’s mandate set forth in the Memorandum dated August 25,
1989 of Commissioner Jose Luis A. Alcuaz, to wit:
"In line with the purpose and objective of MC 4-08-88, Cable Television System or
Community Antenna Television (CATV) is made part of the broadcast media to
promote the orderly growth of the Cable Television Industry it being in its developing
stage. Being part of the Broadcast Media, the service rates of CATV are likewise
considered deregulated in accordance with MC 06-2-81 dated 25 February 1981, the
implementing guidelines for the authorization and operation of Radio and Television
Broadcasting stations/systems.
Further, the Commission will issue Provisional Authority to existing CATV operators
to authorize their operations for a period of ninety (90) days until such time that the
Commission can issue the regular Certificate of Authority."
When the State declared a policy of deregulation, the LGUs are bound to follow. To rule
otherwise is to render the State’s policy ineffective. Being mere creatures of the State,
LGUs cannot defeat national policies through enactments of contrary measures. Verily, in
the case at bar, petitioner may increase its subscriber rates without respondents’ approval.
At this juncture, it bears emphasizing that municipal corporations are bodies politic and
corporate, created not only as local units of local self-government, but as governmental
agencies of the state.51 The legislature, by establishing a municipal corporation, does not
divest the State of any of its sovereignty; absolve itself from its right and duty to administer
the public affairs of the entire state; or divest itself of any power over the inhabitants of the
district which it possesses before the charter was granted. 52
Respondents likewise argue that E.O. No. 205 violates the constitutional prohibition against
impairment of contracts, Resolution No. 210 of Batangas City Sangguniang
Panlungsod being a grant of franchise to petitioner.
We are not convinced.
There is no law specifically authorizing the LGUs to grant franchises to operate CATV
system. Whatever authority the LGUs had before, the same had been withdrawn when
President Marcos issued P.D. No. 1512 "terminating all franchises, permits or certificates for
the operation of CATV system previously granted by local governments." Today, pursuant
to Section 3 of E.O. No. 436, "only persons, associations, partnerships, corporations or
cooperatives granted a Provisional Authority or Certificate of Authority by the NTC may
install, operate and maintain a cable television system or render cable television service
Josef Elvin Campos
within a service area." It is clear that in the absence of constitutional or legislative
authorization, municipalities have no power to grant franchises. 53 Consequently, the
protection of the constitutional provision as to impairment of the obligation of a contract
does not extend to privileges, franchises and grants given by a municipality in excess of its
powers, or ultra vires.54
One last word. The devolution of powers to the LGUs, pursuant to the Constitutional
mandate of ensuring their autonomy, has bred jurisdictional tension between said LGUs and
the State. LGUs must be reminded that they merely form part of the whole. Thus, when the
Drafters of the 1987 Constitution enunciated the policy of ensuring the autonomy of local
governments,55 it was never their intention to create an imperium in imperio and install an
intra-sovereign political subdivision independent of a single sovereign state.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals
dated February 12, 1999 as well as its Resolution dated May 26, 1999 in CA-G.R. CV No.
52461, are hereby REVERSED. The RTC Decision in Civil Case No. 4254 is AFFIRMED.
SO ORDERED.
Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez,
Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario*, JJ., concur.
2. Power of the President over LGUs (Sec. 4, Art. X 1987 Constitution)

Section 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.
Cases:
Judge Dadole v. Commission on Audit (G.R. No. 125350, December 3,
2002)
G.R. No. 125350 December 3, 2002
HON. RTC JUDGES MERCEDES G. DADOLE (Executive Judge, Branch 28),
ULRIC R. CAÑETE (Presiding Judge, Branch 25),
AGUSTINE R. VESTIL (Presiding Judge, Branch 56),
HON. MTC JUDGES TEMISTOCLES M. BOHOLST (Presiding Judge, Branch 1),
VICENTE C. FANILAG (Judge Designate, Branch 2),
and WILFREDO A. DAGATAN (Presiding Judge, Branch 3), all of Mandaue
City, petitioners,
vs.
COMMISSION ON AUDIT, respondent.
DECISION
CORONA, J.:
Before us is a petition for certiorari under Rule 64 to annul the decision 1 and resolution2,
dated September 21, 1995 and May 28, 1996, respectively, of the respondent Commission
on Audit (COA) affirming the notices of the Mandaue City Auditor which diminished the
monthly additional allowances received by the petitioner judges of the Regional Trial Court
(RTC) and Municipal Trial Court (MTC) stationed in Mandaue City.
The undisputed facts are as follows:

In 1986, the RTC and MTC judges of Mandaue City started receiving monthly allowances
of P1,260 each through the yearly appropriation ordinance enacted by the Sangguniang
Panlungsod of the said city. In 1991, Mandaue City increased the amount to P1,500 for
each judge.
On March 15, 1994, the Department of Budget and Management (DBM) issued the disputed
Local Budget Circular No. 55 (LBC 55) which provided that:
"x x x x x x x x x
2.3.2. In the light of the authority granted to the local government units under the
Local Government Code to provide for additional allowances and other benefits to
national government officials and employees assigned in their locality, such
additional allowances in the form of honorarium at rates not exceeding P1,000.00 in
Josef Elvin Campos
provinces and cities and P700.00 in municipalities may be granted subject to the
following conditions:
a) That the grant is not mandatory on the part of the LGUs;
b) That all contractual and statutory obligations of the LGU including the
implementation of R.A. 6758 shall have been fully provided in the budget;
c) That the budgetary requirements/limitations under Section 324 and 325 of R.A.
7160 should be satisfied and/or complied with; and
d) That the LGU has fully implemented the devolution of functions/personnel in
accordance with R.A. 7160.3" (italics supplied)
xxx xxx xxx
The said circular likewise provided for its immediate effectivity without need of publication:
"5.0 EFFECTIVITY
This Circular shall take effect immediately."
Acting on the DBM directive, the Mandaue City Auditor issued notices of disallowance to
herein petitioners, namely, Honorable RTC Judges Mercedes G. Dadole, Ulric R. Cañete,
Agustin R. Vestil, Honorable MTC Judges Temistocles M. Boholst, Vicente C. Fanilag and
Wilfredo A. Dagatan, in excess of the amount authorized by LBC 55. Beginning October,
1994, the additional monthly allowances of the petitioner judges were reduced to P1,000
each. They were also asked to reimburse the amount they received in excess of P1,000
from April to September, 1994.
The petitioner judges filed with the Office of the City Auditor a protest against the notices of
disallowance. But the City Auditor treated the protest as a motion for reconsideration and
indorsed the same to the COA Regional Office No. 7. In turn, the COA Regional Office
referred the motion to the head office with a recommendation that the same be denied.
On September 21, 1995, respondent COA rendered a decision denying petitioners' motion
for reconsideration. The COA held that:
The issue to be resolved in the instant appeal is whether or not the City Ordinance of
Mandaue which provides a higher rate of allowances to the appellant judges may prevail
over that fixed by the DBM under Local Budget Circular No. 55 dated March 15, 1994.
xxx xxx xxx
Applying the foregoing doctrine, appropriation ordinance of local government units is subject
to the organizational, budgetary and compensation policies of budgetary authorities (COA
5th Ind., dated March 17, 1994 re: Province of Antique; COA letter dated May 17, 1994 re:
Request of Hon. Renato Leviste, Cong. 1st Dist. Oriental Mindoro). In this regard, attention
is invited to Administrative Order No. 42 issued on March 3, 1993 by the President of the
Philippines clarifying the role of DBM in the compensation and classification of local
government positions under RA No. 7160 vis-avis the provisions of RA No. 6758 in view of
the abolition of the JCLGPA. Section 1 of said Administrative Order provides that:
"Section 1. The Department of Budget and Management as the lead administrator of

RA No. 6758 shall, through its Compensation and Position Classification Bureau,
continue to have the following responsibilities in connection with the implementation
of the Local Government Code of 1991:
a) Provide guidelines on the classification of local government positions
and on the specific rates of pay therefore;
b) Provide criteria and guidelines for the grant of
all allowances and additional forms of compensation to local government
employees; xxx." (underscoring supplied)
To operationalize the aforecited presidential directive, DBM issued LBC No. 55, dated
March 15, 1994, whose effectivity clause provides that:
xxx xxx xxx
"5.0 EFFECTIVITY
This Circular shall take effect immediately."
It is a well-settled rule that implementing rules and regulations promulgated by
administrative or executive officer in accordance with, and as authorized by law, has the
force and effect of law or partake the nature of a statute (Victorias Milling Co., Inc., vs.
Social Security Commission, 114 Phil. 555, cited in Agpalo's Statutory Construction, 2nd
Josef Elvin Campos
Ed. P. 16; Justice Cruz's Phil. Political Law, 1984 Ed., p. 103; Espanol vs. Phil Veterans
Administration, 137 SCRA 314; Antique Sawmills Inc. vs. Tayco, 17 SCRA 316).
xxx xxx xxx
There being no statutory basis to grant additional allowance to judges in excess of
P1,000.00 chargeable against the local government units where they are stationed, this
Commission finds no substantial grounds or cogent reason to disturb the decision of the
City Auditor, Mandaue City, disallowing in audit the allowances in question. Accordingly, the
above-captioned appeal of the MTC and RTC Judges of Mandaue City, insofar as the same
is not covered by Circular Letter No. 91-7, is hereby dismissed for lack of merit.
x x x x x x x x x4
On November 27, 1995, Executive Judge Mercedes Gozo-Dadole, for and in behalf of the
petitioner judges, filed a motion for reconsideration of the decision of the COA. In a
resolution dated May 28, 1996, the COA denied the motion.
Hence, this petition for certiorari by the petitioner judges, submitting the following questions
for resolution:
I
HAS THE CITY OF MANDAUE STATUTORY AND CONSTITUTIONAL BASIS TO
PROVIDE ADDITIONAL ALLOWANCES AND OTHER BENEFITS TO JUDGES
STATIONED IN AND ASSIGNED TO THE CITY?
II
CAN AN ADMINISTRATIVE CIRCULAR OR GUIDELINE SUCH AS LOCAL BUDGET
CIRCULAR NO. 55 RENDER INOPERATIVE THE POWER OF THE LEGISLATIVE BODY
OF A CITY BY SETTING A LIMIT TO THE EXTENT OF THE EXERCISE OF SUCH
POWER?
III
HAS THE COMMISSION ON AUDIT CORRECTLY INTERPRETED LOCAL BUDGET
CIRCULAR NO. 55 TO INCLUDE MEMBERS OF THE JUDICIARY IN FIXING THE
CEILING OF ADDITIONAL ALLOWANCES AND BENEFITS TO BE PROVIDED TO
JUDGES STATIONED IN AND ASSIGNED TO MANDAUE CITY BY THE CITY
GOVERNMENT AT P1,000.00 PER MONTH NOTWITHSTANDING THAT THEY HAVE
BEEN RECEIVING ALLOWANCES OF P1,500.00 MONTHLY FOR THE PAST FIVE
YEARS?
IV
IS LOCAL BUDGET CIRCULAR NO. 55 DATED MARCH 15, 1994 ISSUED BY THE
DEPARTMENT OF BUDGET AND MANAGEMENT VALID AND ENFORCEABLE
CONSIDERING THAT IT WAS NOT DULY PUBLISHED IN ACCODANCE WITH LAW?5
Petitioner judges argue that LBC 55 is void for infringing on the local autonomy of Mandaue
City by dictating a uniform amount that a local government unit can disburse as additional
allowances to judges stationed therein. They maintain that said circular is not supported by
any law and therefore goes beyond the supervisory powers of the President. They further
allege that said circular is void for lack of publication.
On the other hand, the yearly appropriation ordinance providing for additional allowances to
judges is allowed by Section 458, par. (a)(1)[xi], of RA 7160, otherwise known as the Local
Government Code of 1991, which provides that:
Sec. 458. Powers, Duties, Functions and Compensation. – (a) The sangguniang

panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city
government, and in this connection, shall:
xxx xxx xxx
(xi) When the finances of the city government allow, provide for additional allowances and
other benefits to judges, prosecutors, public elementary and high school teachers, and
other national government officials stationed in or assigned to the city; (italics supplied)
Instead of filing a comment on behalf of respondent COA, the Solicitor General filed a
manifestation supporting the position of the petitioner judges. The Solicitor General argues
that (1) DBM only enjoys the power to review and determine whether the disbursements of
funds were made in accordance with the ordinance passed by a local government unit while
Josef Elvin Campos
(2) the COA has no more than auditorial visitation powers over local government units
pursuant to Section 348 of RA 7160 which provides for the power to inspect at any time the
financial accounts of local government units.
Moreover, the Solicitor General opines that "the DBM and the respondent are only
authorized under RA 7160 to promulgate a Budget Operations Manual for local government
units, to improve and systematize methods, techniques and procedures employed in budget
preparation, authorization, execution and accountability" pursuant to Section 354 of RA
7160. The Solicitor General points out that LBC 55 was not exercised under any of the
aforementioned provisions.
Respondent COA, on the other hand, insists that the constitutional and statutory authority of
a city government to provide allowances to judges stationed therein is not absolute.
Congress may set limitations on the exercise of autonomy. It is for the President, through
the DBM, to check whether these legislative limitations are being followed by the local
government units.
One such law imposing a limitation on a local government unit's autonomy is Section 458,
par. (a) (1) [xi], of RA 7160, which authorizes the disbursement of additional allowances and
other benefits to judges subject to the condition that the finances of the city government
should allow the same. Thus, DBM is merely enforcing the condition of the law when it sets
a uniform maximum amount for the additional allowances that a city government can
release to judges stationed therein.
Assuming arguendo that LBC 55 is void, respondent COA maintains that the provisions of

the yearly approved ordinance granting additional allowances to judges are still prohibited
by the appropriation laws passed by Congress every year. COA argues that Mandaue City
gets the funds for the said additional allowances of judges from the Internal Revenue
Allotment (IRA). But the General Appropriations Acts of 1994 and 1995 do not mention the
disbursement of additional allowances to judges as one of the allowable uses of the IRA.
Hence, the provisions of said ordinance granting additional allowances, taken from the IRA,
to herein petitioner judges are void for being contrary to law.
To resolve the instant petition, there are two issues that we must address: (1) whether LBC
55 of the DBM is void for going beyond the supervisory powers of the President and for not
having been published and (2) whether the yearly appropriation ordinance enacted by the
City of Mandaue that provides for additional allowances to judges contravenes the annual
appropriation laws enacted by Congress.
We rule in favor of the petitioner judges.
On the first issue, we declare LBC 55 to be null and void.
We recognize that, although our Constitution 6 guarantees autonomy to local government

units, the exercise of local autonomy remains subject to the power of control by Congress
and the power of supervision by the President. Section 4 of Article X of the 1987 Philippine
Constitution provides that:
Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. x x x
In Pimentel vs. Aguirre7, we defined the supervisory power of the President and
distinguished it from the power of control exercised by Congress. Thus:
This provision (Section 4 of Article X of the 1987 Philippine Constitution) has been
interpreted to exclude the power of control. In Mondano v. Silvosa,i 5 the Court contrasted
the President's power of supervision over local government officials with that of his power of
control over executive officials of the national government. It was emphasized that the two
terms -- supervision and control -- differed in meaning and extent. The Court distinguished
them as follows:
"x x x In administrative law, supervision means overseeing or the power or authority of an

officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill
them, the former may take such action or step as prescribed by law to make them perform
Josef Elvin Campos
their duties. Control, on the other hand, means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer ha[s] done in the performance of his duties
and to substitute the judgment of the former for that of the latter." ii 6
In Taule v. Santos,iii 7 we further stated that the Chief Executive wielded no more authority
than that of checking whether local governments or their officials were performing their
duties as provided by the fundamental law and by statutes. He cannot interfere with local
governments, so long as they act within the scope of their authority. "Supervisory power,
when contrasted with control, is the power of mere oversight over an inferior body; it does
not include any restraining authority over such body," iv 8 we said.
In a more recent case, Drilon v. Lim,v 9 the difference between control and supervision was
further delineated. Officers in control lay down the rules in the performance or
accomplishment of an act. If these rules are not followed, they may, in their discretion, order
the act undone or redone by their subordinates or even decide to do it themselves. On the
other hand, supervision does not cover such authority. Supervising officials merely see to it
that the rules are followed, but they themselves do not lay down such rules, nor do they
have the discretion to modify or replace them. If the rules are not observed, they may order
the work done or redone, but only to conform to such rules. They may not prescribe their
own manner of execution of the act. They have no discretion on this matter except to see to
it that the rules are followed.
Under our present system of government, executive power is vested in the

President.vi10 The members of the Cabinet and other executive officials are merely alter
egos. As such, they are subject to the power of control of the President, at whose will and
behest they can be removed from office; or their actions and decisions changed, suspended
or reversed.vii 11 In contrast, the heads of political subdivisions are elected by the people.
Their sovereign powers emanate from the electorate, to whom they are directly
accountable. By constitutional fiat, they are subject to the President's supervision only, not
control, so long as their acts are exercised within the sphere of their legitimate powers. By
the same token, the President may not withhold or alter any authority or power given them
by the Constitution and the law.
Clearly then, the President can only interfere in the affairs and activities of a local
government unit if he or she finds that the latter has acted contrary to law. This is the scope
of the President's supervisory powers over local government units. Hence, the President or
any of his or her alter egos cannot interfere in local affairs as long as the concerned local
government unit acts within the parameters of the law and the Constitution. Any directive
therefore by the President or any of his or her alter egos seeking to alter the wisdom of a
law-conforming judgment on local affairs of a local government unit is a patent nullity
because it violates the principle of local autonomy and separation of powers of the
executive and legislative departments in governing municipal corporations.
Does LBC 55 go beyond the law it seeks to implement? Yes.
LBC 55 provides that the additional monthly allowances to be given by a local government
unit should not exceed P1,000 in provinces and cities and P700 in municipalities. Section
458, par. (a)(1)(xi), of RA 7160, the law that supposedly serves as the legal basis of LBC
55, allows the grant of additional allowances to judges "when the finances of the city
government allow." The said provision does not authorize setting a definite maximum limit to
the additional allowances granted to judges. Thus, we need not belabor the point that the
finances of a city government may allow the grant of additional allowances higher
than P1,000 if the revenues of the said city government exceed its annual expenditures.
Thus, to illustrate, a city government with locally generated annual revenues of P40 million
and expenditures of P35 million can afford to grant additional allowances of more
than P1,000 each to, say, ten judges inasmuch as the finances of the city can afford it.
Setting a uniform amount for the grant of additional allowances is an inappropriate way of
enforcing the criterion found in Section 458, par. (a)(1)(xi), of RA 7160. The DBM over-
stepped its power of supervision over local government units by imposing a prohibition that
did not correspond with the law it sought to implement. In other words, the prohibitory
nature of the circular had no legal basis.
Josef Elvin Campos
Furthermore, LBC 55 is void on account of its lack of publication, in violation of our ruling
in Tañada vs. Tuvera8 where we held that:
xxx. Administrative rules and regulations must also be published if their purpose is to
enforce or implement existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of an administrative agency and the public, need not be published. Neither is
publication required of the so-called letters of instruction issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties.
Respondent COA claims that publication is not required for LBC 55 inasmuch as it is merely
an interpretative regulation applicable to the personnel of an LGU. We disagree. In De
Jesus vs. Commission on Audit9 where we dealt with the same issue, this Court declared
void, for lack of publication, a DBM circular that disallowed payment of allowances and
other additional compensation to government officials and employees. In refuting
respondent COA's argument that said circular was merely an internal regulation, we ruled
that:
On the need for publication of subject DBM-CCC No. 10, we rule in the affirmative.
Following the doctrine enunciated in Tañada v. Tuvera, publication in the Official Gazette or
in a newspaper of general circulation in the Philippines is required since DBM-CCC No. 10
is in the nature of an administrative circular the purpose of which is to enforce or
implement an existing law. Stated differently, to be effective and enforceable, DBM-CCC
No. 10 must go through the requisite publication in the Official Gazette or in a newspaper of
general circulation in the Philippines.
In the present case under scrutiny, it is decisively clear that DBM-CCC No. 10, which
completely disallows payment of allowances and other additional compensation to
government officials and employees, starting November 1, 1989, is not a mere interpretative
or internal regulation. It is something more than that. And why not, when it tends to deprive
government workers of their allowance and additional compensation sorely needed to keep
body and soul together. At the very least, before the said circular under attack may be
permitted to substantially reduce their income, the government officials and
employees concerned should be apprised and alerted by the publication of subject
circular in the Official Gazette or in a newspaper of general circulation in the
Philippines – to the end that they be given amplest opportunity to voice out whatever
opposition they may have, and to ventilate their stance on the matter. This approach
is more in keeping with democratic precepts and rudiments of fairness and
transparency. (emphasis supplied)
In Philippine International Trading Corporation vs. Commission on Audit 10, we again

declared the same circular as void, for lack of publication, despite the fact that it was re-
issued and then submitted for publication. Emphasizing the importance of publication to the
effectivity of a regulation, we therein held that:
It has come to our knowledge that DBM-CCC No. 10 has been re-issued in its entirety and
submitted for publication in the Official Gazette per letter to the National Printing Office
dated March 9, 1999. Would the subsequent publication thereof cure the defect and retroact
to the time that the above-mentioned items were disallowed in audit?
The answer is in the negative, precisely for the reason that publication is required as
a condition precedent to the effectivity of a law to inform the public of the contents of the
law or rules and regulations before their rights and interests are affected by the same. From
the time the COA disallowed the expenses in audit up to the filing of herein petition the
subject circular remained in legal limbo due to its non-publication. As was stated in Tañada
v. Tuvera, "prior publication of laws before they become effective cannot be dispensed with,
for the reason that it would deny the public knowledge of the laws that are supposed to
govern it."11
We now resolve the second issue of whether the yearly appropriation ordinance enacted by
Mandaue City providing for fixed allowances for judges contravenes any law and should
therefore be struck down as null and void.
Josef Elvin Campos
According to respondent COA, even if LBC 55 were void, the ordinances enacted by
Mandaue City granting additional allowances to the petitioner judges would "still (be) bereft
of legal basis for want of a lawful source of funds considering that the IRA cannot be used
for such purposes." Respondent COA showed that Mandaue City's funds consisted of
locally generated revenues and the IRA. From 1989 to 1995, Mandaue City's yearly
expenditures exceeded its locally generated revenues, thus resulting in a deficit. During all
those years, it was the IRA that enabled Mandaue City to incur a surplus. Respondent avers
that Mandaue City used its IRA to pay for said additional allowances and this violated
paragraph 2 of the Special Provisions, page 1060, of RA 7845 (The General Appropriations
Act of 1995)12 and paragraph 3 of the Special Provision, page 1225, of RA 7663 (The
General Appropriations Act of 1994)13 which specifically identified the objects of expenditure
of the IRA. Nowhere in said provisions of the two budgetary laws does it say that the IRA
can be used for additional allowances of judges. Respondent COA thus argues that the
provisions in the ordinance providing for such disbursement are against the law, considering
that the grant of the subject allowances is not within the specified use allowed by the
aforesaid yearly appropriations acts.
We disagree.
Respondent COA failed to prove that Mandaue City used the IRA to spend for the additional
allowances of the judges. There was no evidence submitted by COA showing the
breakdown of the expenses of the city government and the funds used for said expenses.
All the COA presented were the amounts expended, the locally generated revenues, the
deficit, the surplus and the IRA received each year. Aside from these items, no data or
figures were presented to show that Mandaue City deducted the subject allowances from
the IRA. In other words, just because Mandaue City's locally generated revenues were not
enough to cover its expenditures, this did not mean that the additional allowances of
petitioner judges were taken from the IRA and not from the city's own revenues.
Moreover, the DBM neither conducted a formal review nor ordered a disapproval of
Mandaue City's appropriation ordinances, in accordance with the procedure outlined by
Sections 326 and 327 of RA 7160 which provide that:
Section 326. Review of Appropriation Ordinances of Provinces, Highly Urbanized Cities,

Independent Component Cities, and Municipalities within the Metropolitan Manila Area. The
Department of Budget and Management shall review ordinances authorizing the annual or
supplemental appropriations of provinces, highly-urbanized cities, independent component
cities, and municipalities within the Metropolitan Manila Area in accordance with the
immediately succeeding Section.
Section 327. Review of Appropriation Ordinances of Component Cities and Municipalities.-

The sangguninang panlalawigan shall review the ordinance authorizing annual or
supplemental appropriations of component cities and municipalities in the same manner
and within the same period prescribed for the review of other ordinances.
If within ninety (90) days from receipt of copies of such ordinance, the sangguniang
panlalawigan takes no action thereon, the same shall be deemed to have been
reviewed in accordance with law and shall continue to be in full force and
effect. (emphasis supplied)
Within 90 days from receipt of the copies of the appropriation ordinance, the DBM should
have taken positive action. Otherwise, such ordinance was deemed to have been properly
reviewed and deemed to have taken effect. Inasmuch as, in the instant case, the DBM did
not follow the appropriate procedure for reviewing the subject ordinance of Mandaue City
and allowed the 90-day period to lapse, it can no longer question the legality of the
provisions in the said ordinance granting additional allowances to judges stationed in the
said city.
WHEREFORE, the petition is hereby GRANTED, and the assailed decision and resolution,
dated September 21, 1995 and May 28, 1996, respectively, of the Commission on Audit are
hereby set aside.
No costs.
Josef Elvin Campos
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago,

Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, and Callejo, Sr., JJ., concur.
Puno, J., on official business.
Azcuna, J., on leave.
Pimentel v. Aguirre, et al. (G.R. No. 132988, July 19, 2000), in relation to
Secs. 284-294, LGC.
G.R. No. 132988 July 19, 2000
AQUILINO Q. PIMENTEL JR., petitioner,
vs.
Hon. ALEXANDER AGUIRRE in his capacity as Executive Secretary, Hon. EMILIA
BONCODIN in her capacity as Secretary of the Department of Budget and
Management, respondents.
ROBERTO PAGDANGANAN, intervenor.
DECISION
PANGANIBAN, J.:
The Constitution vests the President with the power of supervision, not control, over local
government units (LGUs). Such power enables him to see to it that LGUs and their officials
execute their tasks in accordance with law. While he may issue advisories and seek their
cooperation in solving economic difficulties, he cannot prevent them from performing their
tasks and using available resources to achieve their goals. He may not withhold or alter any
authority or power given them by the law. Thus, the withholding of a portion of internal
revenue allotments legally due them cannot be directed by administrative fiat.
The Case
Before us is an original Petition for Certiorari and Prohibition seeking (1) to annul Section 1
of Administrative Order (AO) No. 372, insofar as it requires local government units to reduce
their expenditures by 25 percent of their authorized regular appropriations for non-personal
services; and (2) to enjoin respondents from implementing Section 4 of the Order, which
withholds a portion of their internal revenue allotments.
On November 17, 1998, Roberto Pagdanganan, through Counsel Alberto C. Agra, filed a
Motion for Intervention/Motion to Admit Petition for Intervention, 1 attaching thereto his
Petition in Intervention2 joining petitioner in the reliefs sought. At the time, intervenor was the
provincial governor of Bulacan, national president of the League of Provinces of the
Philippines and chairman of the League of Leagues of Local Governments. In a Resolution
dated December 15, 1998, the Court noted said Motion and Petition.
The Facts and the Arguments
On December 27, 1997, the President of the Philippines issued AO 372. Its full text, with
emphasis on the assailed provisions, is as follows:
"ADMINISTRATIVE ORDER NO. 372

ADOPTION OF ECONOMY MEASURES IN GOVERNMENT FOR FY 1998
WHEREAS, the current economic difficulties brought about by the peso depreciation
requires continued prudence in government fiscal management to maintain economic
stability and sustain the country's growth momentum;
WHEREAS, it is imperative that all government agencies adopt cash management

measures to match expenditures with available resources;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by

virtue of the powers vested in me by the Constitution, do hereby order and direct:
SECTION 1. All government departments and agencies, including state universities

and colleges, government-owned and controlled corporations and local governments
units will identify and implement measures in FY 1998 that will reduce total
Josef Elvin Campos
expenditures for the year by at least 25% of authorized regular appropriations for
non-personal services items, along the following suggested areas:
1. Continued implementation of the streamlining policy on organization and staffing
by deferring action on the following:
a. Operationalization of new agencies;
b. Expansion of organizational units and/or creation of positions;
c. Filling of positions; and
d. Hiring of additional/new consultants, contractual and casual personnel,
regardless of funding source.
2. Suspension of the following activities:
a. Implementation of new capital/infrastructure projects, except those which
have already been contracted out;
b. Acquisition of new equipment and motor vehicles;
c. All foreign travels of government personnel, except those associated with
scholarships and trainings funded by grants;
d. Attendance in conferences abroad where the cost is charged to the
government except those clearly essential to Philippine commitments in the
international field as may be determined by the Cabinet;
e. Conduct of trainings/workshops/seminars, except those conducted by
government training institutions and agencies in the performance of their
regular functions and those that are funded by grants;
f. Conduct of cultural and social celebrations and sports activities, except
those associated with the Philippine Centennial celebration and those
involving regular competitions/events;
g. Grant of honoraria, except in cases where it constitutes the only source of
compensation from government received by the person concerned;
h. Publications, media advertisements and related items, except those
required by law or those already being undertaken on a regular basis;
i. Grant of new/additional benefits to employees, except those expressly and
specifically authorized by law; and
j. Donations, contributions, grants and gifts, except those given by institutions
to victims of calamities.
3. Suspension of all tax expenditure subsidies to all GOCCs and LGUs
4. Reduction in the volume of consumption of fuel, water, office supplies, electricity
and other utilities
5. Deferment of projects that are encountering significant implementation problems
6. Suspension of all realignment of funds and the use of savings and reserves
SECTION 2. Agencies are given the flexibility to identify the specific sources of cost-
savings, provided the 25% minimum savings under Section 1 is complied with.
SECTION 3. A report on the estimated savings generated from these measures shall be
submitted to the Office of the President, through the Department of Budget and
Management, on a quarterly basis using the attached format.
SECTION 4. Pending the assessment and evaluation by the Development Budget

Coordinating Committee of the emerging fiscal situation, the amount equivalent to
10% of the internal revenue allotment to local government units shall be withheld.
SECTION 5. The Development Budget Coordination Committee shall conduct a monthly

review of the fiscal position of the National Government and if necessary, shall recommend
to the President the imposition of additional reserves or the lifting of previously imposed
reserves.
SECTION 6. This Administrative Order shall take effect January 1, 1998 and shall remain
valid for the entire year unless otherwise lifted.
DONE in the City of Manila, this 27th day of December, in the year of our Lord, nineteen
hundred and ninety-seven."
Subsequently, on December 10, 1998, President Joseph E. Estrada issued AO 43,

amending Section 4 of AO 372, by reducing to five percent (5%) the amount of internal
revenue allotment (IRA) to be withheld from the LGUs.
Petitioner contends that the President, in issuing AO 372, was in effect exercising the power
of control over LGUs. The Constitution vests in the President, however, only the power of
general supervision over LGUs, consistent with the principle of local autonomy. Petitioner
Josef Elvin Campos
further argues that the directive to withhold ten percent (10%) of their IRA is in
contravention of Section 286 of the Local Government Code and of Section 6, Article X of
the Constitution, providing for the automatic release to each of these units its share in the
national internal revenue.
The solicitor general, on behalf of the respondents, claims on the other hand that AO 372
was issued to alleviate the "economic difficulties brought about by the peso devaluation"
and constituted merely an exercise of the President's power of supervision over LGUs. It
allegedly does not violate local fiscal autonomy, because it merely directs local
governments to identify measures that will reduce their total expenditures for non-personal
services by at least 25 percent. Likewise, the withholding of 10 percent of the LGUs’ IRA
does not violate the statutory prohibition on the imposition of any lien or holdback on their
revenue shares, because such withholding is "temporary in nature pending the assessment
and evaluation by the Development Coordination Committee of the emerging fiscal
situation."
The Issues
The Petition3 submits the following issues for the Court's resolution:
"A. Whether or not the president committed grave abuse of discretion [in] ordering all LGUS
to adopt a 25% cost reduction program in violation of the LGU[']S fiscal autonomy
"B. Whether or not the president committed grave abuse of discretion in ordering the
withholding of 10% of the LGU[']S IRA"
In sum, the main issue is whether (a) Section 1 of AO 372, insofar as it "directs" LGUs to
reduce their expenditures by 25 percent; and (b) Section 4 of the same issuance, which
withholds 10 percent of their internal revenue allotments, are valid exercises of the
President's power of general supervision over local governments.
Additionally, the Court deliberated on the question whether petitioner had the locus
standi to bring this suit, despite respondents' failure to raise the issue. 4 However, the
intervention of Roberto Pagdanganan has rendered academic any further discussion on this
matter.
The Court's Ruling

The Petition is partly meritorious.
Main Issue:
Validity of AO 372
Insofar as LGUs Are Concerned
Before resolving the main issue, we deem it important and appropriate to define certain
crucial concepts: (1) the scope of the President's power of general supervision over local
governments and (2) the extent of the local governments' autonomy.
Scope of President's Power of Supervision Over LGUs
Section 4 of Article X of the Constitution confines the President's power over local
governments to one of general supervision. It reads as follows:
"Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. x x x"
This provision has been interpreted to exclude the power of control. In Mondano v.
Silvosa,5 the Court contrasted the President's power of supervision over local government
officials with that of his power of control over executive officials of the national government.
It was emphasized that the two terms -- supervision and control -- differed in meaning and
extent. The Court distinguished them as follows:
"x x x In administrative law, supervision means overseeing or the power or authority of an

officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill
them, the former may take such action or step as prescribed by law to make them perform
their duties. Control, on the other hand, means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer ha[s] done in the performance of his duties
and to substitute the judgment of the former for that of the latter." 6
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In Taule v. Santos,7 we further stated that the Chief Executive wielded no more authority
than that of checking whether local governments or their officials were performing their
duties as provided by the fundamental law and by statutes. He cannot interfere with local
governments, so long as they act within the scope of their authority. "Supervisory power,
when contrasted with control, is the power of mere oversight over an inferior body; it does
not include any restraining authority over such body," 8 we said.
In a more recent case, Drilon v. Lim,9 the difference between control and supervision was
further delineated. Officers in control lay down the rules in the performance or
accomplishment of an act. If these rules are not followed, they may, in their discretion, order
the act undone or redone by their subordinates or even decide to do it themselves. On the
other hand, supervision does not cover such authority. Supervising officials merely see to it
that the rules are followed, but they themselves do not lay down such rules, nor do they
have the discretion to modify or replace them. If the rules are not observed, they may order
the work done or redone, but only to conform to such rules. They may not prescribe their
own manner of execution of the act. They have no discretion on this matter except to see to
it that the rules are followed.
Under our present system of government, executive power is vested in the President. 10 The
members of the Cabinet and other executive officials are merely alter egos. As such, they
are subject to the power of control of the President, at whose will and behest they can be
removed from office; or their actions and decisions changed, suspended or reversed. 11 In
contrast, the heads of political subdivisions are elected by the people. Their sovereign
powers emanate from the electorate, to whom they are directly accountable. By
constitutional fiat, they are subject to the President’s supervision only, not control, so long
as their acts are exercised within the sphere of their legitimate powers. By the same token,
the President may not withhold or alter any authority or power given them by the
Constitution and the law.
Extent of Local Autonomy
Hand in hand with the constitutional restraint on the President's power over local
governments is the state policy of ensuring local autonomy. 12
In Ganzon v. Court of Appeals, 13 we said that local autonomy signified "a more responsive
and accountable local government structure instituted through a system of decentralization."
The grant of autonomy is intended to "break up the monopoly of the national government
over the affairs of local governments, x x x not x x x to end the relation of partnership and
interdependence between the central administration and local government units x x x."
Paradoxically, local governments are still subject to regulation, however limited, for the
purpose of enhancing self-government.14
Decentralization simply means the devolution of national administration, not power, to local

governments. Local officials remain accountable to the central government as the law may
provide.15 The difference between decentralization of administration and that of power was
explained in detail in Limbona v. Mangelin16 as follows:
"Now, autonomy is either decentralization of administration or decentralization of power.

power and in the process to make local governments 'more responsive and
accountable,'17 and 'ensure their fullest development as self-reliant communities and make
them more effective partners in the pursuit of national development and social
progress.'18 At the same time, it relieves the central government of the burden of managing
local affairs and enables it to concentrate on national concerns. The President exercises
'general supervision'19 over them, but only to 'ensure that local affairs are administered
according to law.'20 He has no control over their acts in the sense that he can substitute their
judgments with his own.21
favor of local government units declared to be autonomous. In that case, the autonomous
government is free to chart its own destiny and shape its future with minimum intervention
from central authorities. According to a constitutional author, decentralization of power
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amounts to 'self-immolation,' since in that event, the autonomous government becomes
accountable not to the central authorities but to its constituency." 22
Under the Philippine concept of local autonomy, the national government has not
completely relinquished all its powers over local governments, including autonomous
regions. Only administrative powers over local affairs are delegated to political subdivisions.
The purpose of the delegation is to make governance more directly responsive and effective
at the local levels. In turn, economic, political and social development at the smaller political
units are expected to propel social and economic growth and development. But to enable
the country to develop as a whole, the programs and policies effected locally must be
integrated and coordinated towards a common national goal. Thus, policy-setting for the
entire country still lies in the President and Congress. As we stated in Magtajas v. Pryce
Properties Corp., Inc., municipal governments are still agents of the national government. 23
The Nature of AO 372
Consistent with the foregoing jurisprudential precepts, let us now look into the nature of AO
372. As its preambular clauses declare, the Order was a "cash management measure"
adopted by the government "to match expenditures with available resources," which were
presumably depleted at the time due to "economic difficulties brought about by the peso
depreciation." Because of a looming financial crisis, the President deemed it necessary to
"direct all government agencies, state universities and colleges, government-owned and
controlled corporations as well as local governments to reduce their total expenditures by at
least 25 percent along suggested areas mentioned in AO 372.
Under existing law, local government units, in addition to having administrative autonomy in
the exercise of their functions, enjoy fiscal autonomy as well. Fiscal autonomy means that
local governments have the power to create their own sources of revenue in addition to their
equitable share in the national taxes released by the national government, as well as the
power to allocate their resources in accordance with their own priorities. It extends to the
preparation of their budgets, and local officials in turn have to work within the constraints
thereof. They are not formulated at the national level and imposed on local governments,
whether they are relevant to local needs and resources or not. Hence, the necessity of a
balancing of viewpoints and the harmonization of proposals from both local and national
officials,24 who in any case are partners in the attainment of national goals.
Local fiscal autonomy does not however rule out any manner of national government
intervention by way of supervision, in order to ensure that local programs, fiscal and
otherwise, are consistent with national goals. Significantly, the President, by constitutional
fiat, is the head of the economic and planning agency of the government, 25 primarily
responsible for formulating and implementing continuing, coordinated and integrated social
and economic policies, plans and programs 26 for the entire country. However, under the
Constitution, the formulation and the implementation of such policies and programs are
subject to "consultations with the appropriate public agencies, various private sectors, and
local government units." The President cannot do so unilaterally.
Consequently, the Local Government Code provides: 27
"x x x [I]n the event the national government incurs an unmanaged public sector deficit, the
President of the Philippines is hereby authorized, upon the recommendation of [the]
Secretary of Finance, Secretary of the Interior and Local Government and Secretary of
Budget and Management, and subject to consultation with the presiding officers of both
Houses of Congress and the presidents of the liga, to make the necessary adjustments in
the internal revenue allotment of local government units but in no case shall the allotment
be less than thirty percent (30%) of the collection of national internal revenue taxes of the
third fiscal year preceding the current fiscal year x x x."
There are therefore several requisites before the President may interfere in local fiscal
matters: (1) an unmanaged public sector deficit of the national government; (2)
consultations with the presiding officers of the Senate and the House of
Representatives and the presidents of the various local leagues; and (3) the corresponding
recommendation of the secretaries of the Department of Finance, Interior and Local
Government, and Budget and Management. Furthermore, any adjustment in the allotment
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shall in no case be less than thirty percent (30%) of the collection of national internal
revenue taxes of the third fiscal year preceding the current one.
Petitioner points out that respondents failed to comply with these requisites before the
issuance and the implementation of AO 372. At the very least, they did not even try to show
that the national government was suffering from an unmanageable public sector deficit.
Neither did they claim having conducted consultations with the different leagues of local
governments. Without these requisites, the President has no authority to adjust, much less
to reduce, unilaterally the LGU's internal revenue allotment.
The solicitor general insists, however, that AO 372 is merely directory and has been issued
by the President consistent with his power of supervision over local governments. It is
intended only to advise all government agencies and instrumentalities to undertake cost-
reduction measures that will help maintain economic stability in the country, which is facing
economic difficulties. Besides, it does not contain any sanction in case of noncompliance.
Being merely an advisory, therefore, Section 1 of AO 372 is well within the powers of the
President. Since it is not a mandatory imposition, the directive cannot be characterized as
an exercise of the power of control.
While the wordings of Section 1 of AO 372 have a rather commanding tone, and while we
agree with petitioner that the requirements of Section 284 of the Local Government Code
have not been satisfied, we are prepared to accept the solicitor general's assurance that the
directive to "identify and implement measures x x x that will reduce total expenditures x x x
by at least 25% of authorized regular appropriation" is merely advisory in character, and
does not constitute a mandatory or binding order that interferes with local autonomy. The
language used, while authoritative, does not amount to a command that emanates from a
boss to a subaltern.
Rather, the provision is merely an advisory to prevail upon local executives to recognize the
need for fiscal restraint in a period of economic difficulty. Indeed, all concerned would do
well to heed the President's call to unity, solidarity and teamwork to help alleviate the crisis.
It is understood, however, that no legal sanction may be imposed upon LGUs and their
officials who do not follow such advice. It is in this light that we sustain the solicitor general's
contention in regard to Section 1.
Withholding a Part of LGUs' IRA
Section 4 of AO 372 cannot, however, be upheld. A basic feature of local fiscal autonomy is
the automatic release of the shares of LGUs in the national internal revenue. This is
mandated by no less than the Constitution. 28 The Local Government Code29 specifies further
that the release shall be made directly to the LGU concerned within five (5) days after every
quarter of the year and "shall not be subject to any lien or holdback that may be imposed by
the national government for whatever purpose."30 As a rule, the term "shall" is a word of
command that must be given a compulsory meaning. 31 The provision is, therefore,
imperative.
Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10
percent of the LGUs' IRA "pending the assessment and evaluation by the Development
Budget Coordinating Committee of the emerging fiscal situation" in the country. Such
withholding clearly contravenes the Constitution and the law. Although temporary, it is
equivalent to a holdback, which means "something held back or withheld, often
temporarily."32 Hence, the "temporary" nature of the retention by the national government
does not matter. Any retention is prohibited.
In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of

national crisis, Section 4 thereof has no color of validity at all. The latter provision effectively
encroaches on the fiscal autonomy of local governments. Concededly, the President was
well-intentioned in issuing his Order to withhold the LGUs’ IRA, but the rule of law requires
that even the best intentions must be carried out within the parameters of the Constitution
and the law. Verily, laudable purposes must be carried out by legal methods.
Refutation of Justice Kapunan's Dissent
Josef Elvin Campos
Mr. Justice Santiago M. Kapunan dissents from our Decision on the grounds that, allegedly,
(1) the Petition is premature; (2) AO 372 falls within the powers of the President as chief
fiscal officer; and (3) the withholding of the LGUs’ IRA is implied in the President's authority
to adjust it in case of an unmanageable public sector deficit.
First, on prematurity. According to the Dissent, when "the conduct has not yet occurred and
the challenged construction has not yet been adopted by the agency charged with
administering the administrative order, the determination of the scope and constitutionality
of the executive action in advance of its immediate adverse effect involves too remote and
abstract an inquiry for the proper exercise of judicial function."
This is a rather novel theory -- that people should await the implementing evil to befall on
them before they can question acts that are illegal or unconstitutional. Be it remembered
that the real issue here is whether the Constitution and the law are contravened by Section
4 of AO 372, not whether they are violated by the acts implementing it. In the unanimous en
banc case Tañada v. Angara,33 this Court held that when an act of the legislative
department is seriously alleged to have infringed the Constitution, settling the controversy
becomes the duty of this Court. By the mere enactment of the questioned law or the
approval of the challenged action, the dispute is said to have ripened into a judicial
controversy even without any other overt act. Indeed, even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty. Said the Court:
"In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute. 'The question thus posed is
judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy
of the Constitution is upheld.' 34 Once a 'controversy as to the application or interpretation of
a constitutional provision is raised before this Court x x x , it becomes a legal issue which
the Court is bound by constitutional mandate to decide.' 35
x x x x x x x x x
"As this Court has repeatedly and firmly emphasized in many cases, 36 it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in matters
that involve grave abuse of discretion brought before it in appropriate cases, committed by
any officer, agency, instrumentality or department of the government."
In the same vein, the Court also held in Tatad v. Secretary of the Department of Energy:37
"x x x Judicial power includes not only the duty of the courts to settle actual controversies
involving rights which are legally demandable and enforceable, but also the duty to
determine whether or not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of government. The
courts, as guardians of the Constitution, have the inherent authority to determine whether a
statute enacted by the legislature transcends the limit imposed by the fundamental law.
Where the statute violates the Constitution, it is not only the right but the duty of the
judiciary to declare such act unconstitutional and void."
By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws, as
in the present case, settling the dispute becomes the duty and the responsibility of the
courts.
Besides, the issue that the Petition is premature has not been raised by the parties; hence it
is deemed waived. Considerations of due process really prevents its use against a party
that has not been given sufficient notice of its presentation, and thus has not been given the
opportunity to refute it.38
Second, on the President's power as chief fiscal officer of the country. Justice Kapunan
posits that Section 4 of AO 372 conforms with the President's role as chief fiscal officer, who
allegedly "is clothed by law with certain powers to ensure the observance of safeguards and
auditing requirements, as well as the legal prerequisites in the release and use of IRAs,
taking into account the constitutional and statutory mandates." 39 He cites instances when
the President may lawfully intervene in the fiscal affairs of LGUs.
Precisely, such powers referred to in the Dissent have specifically been authorized by law
and have not been challenged as violative of the Constitution. On the other hand, Section 4
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of AO 372, as explained earlier, contravenes explicit provisions of the Local Government
Code (LGC) and the Constitution. In other words, the acts alluded to in the Dissent are
indeed authorized by law; but, quite the opposite, Section 4 of AO 372 is bereft of any legal
or constitutional basis.
Third, on the President's authority to adjust the IRA of LGUs in case of an unmanageable
public sector deficit. It must be emphasized that in striking down Section 4 of AO 372, this
Court is not ruling out any form of reduction in the IRAs of LGUs. Indeed, as the President
may make necessary adjustments in case of an unmanageable public sector deficit, as
stated in the main part of this Decision, and in line with Section 284 of the LGC, which
Justice Kapunan cites. He, however, merely glances over a specific requirement in the
same provision -- that such reduction is subject to consultation with the presiding officers of
both Houses of Congress and, more importantly, with the presidents of the leagues of local
governments.
Notably, Justice Kapunan recognizes the need for "interaction between the national
government and the LGUs at the planning level," in order to ensure that "local development
plans x x x hew to national policies and standards." The problem is that no such interaction
or consultation was ever held prior to the issuance of AO 372. This is why the petitioner and
the intervenor (who was a provincial governor and at the same time president of the League
of Provinces of the Philippines and chairman of the League of Leagues of Local
Governments) have protested and instituted this action. Significantly, respondents do not
deny the lack of consultation.
In addition, Justice Kapunan cites Section 287 40 of the LGC as impliedly authorizing the
President to withhold the IRA of an LGU, pending its compliance with certain requirements.
Even a cursory reading of the provision reveals that it is totally inapplicable to the issue at
bar. It directs LGUs to appropriate in their annual budgets 20 percent of their respective
IRAs for development projects. It speaks of no positive power granted the President to
priorly withhold any amount. Not at all.
WHEREFORE, the Petition is GRANTED. Respondents and their successors are hereby
permanently PROHIBITED from implementing Administrative Order Nos. 372 and 43,
respectively dated December 27, 1997 and December 10, 1998, insofar as local
government units are concerned.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Quisumbing, Pardo, Buena,
Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Kapunan, J., see dissenting opinion.
Purisima, and Ynares-Santiago, JJ., join J. Kapunan in his dissenting opinion.
Province of Batangas v. Romulo (G.R. No. 152774, 27 May 2004)

G.R. No. 152774 May 27, 2004
THE PROVINCE OF BATANGAS, represented by its Governor, HERMILANDO I.
MANDANAS, petitioner,
vs.
HON. ALBERTO G. ROMULO, Executive Secretary and Chairman of the Oversight
Committee on Devolution; HON. EMILIA BONCODIN, Secretary, Department of
Budget and Management; HON. JOSE D. LINA, JR., Secretary, Department of Interior
and Local Government, respondents.
DECISION
CALLEJO, SR., J.:
The Province of Batangas, represented by its Governor, Hermilando I. Mandanas, filed the
present petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of
Court, as amended, to declare as unconstitutional and void certain provisos contained in the
General Appropriations Acts (GAA) of 1999, 2000 and 2001, insofar as they uniformly
earmarked for each corresponding year the amount of five billion pesos
(₱5,000,000,000.00) of the Internal Revenue Allotment (IRA) for the Local Government
Service Equalization Fund (LGSEF) and imposed conditions for the release thereof.
Named as respondents are Executive Secretary Alberto G. Romulo, in his capacity as
Chairman of the Oversight Committee on Devolution, Secretary Emilia Boncodin of the
Josef Elvin Campos
Department of Budget and Management (DBM) and Secretary Jose Lina of the Department
of Interior and Local Government (DILG).
Background
On December 7, 1998, then President Joseph Ejercito Estrada issued Executive Order
(E.O.) No. 48 entitled "ESTABLISHING A PROGRAM FOR DEVOLUTION ADJUSTMENT
AND EQUALIZATION." The program was established to "facilitate the process of enhancing
the capacities of local government units (LGUs) in the discharge of the functions and
services devolved to them by the National Government Agencies concerned pursuant to the
Local Government Code."1 The Oversight Committee (referred to as the Devolution
Committee in E.O. No. 48) constituted under Section 533(b) of Republic Act No. 7160 (The
Local Government Code of 1991) has been tasked to formulate and issue the appropriate
rules and regulations necessary for its effective implementation. 2 Further, to address the
funding shortfalls of functions and services devolved to the LGUs and other funding
requirements of the program, the "Devolution Adjustment and Equalization Fund" was
created.3 For 1998, the DBM was directed to set aside an amount to be determined by the
Oversight Committee based on the devolution status appraisal surveys undertaken by the
DILG.4 The initial fund was to be sourced from the available savings of the national
government for CY 1998.5 For 1999 and the succeeding years, the corresponding amount
required to sustain the program was to be incorporated in the annual GAA. 6 The Oversight
Committee has been authorized to issue the implementing rules and regulations governing
the equitable allocation and distribution of said fund to the LGUs. 7
The LGSEF in the GAA of 1999
In Republic Act No. 8745, otherwise known as the GAA of 1999, the program was renamed
as the LOCAL GOVERNMENT SERVICE EQUALIZATION FUND (LGSEF). Under said
appropriations law, the amount of ₱96,780,000,000 was allotted as the share of the LGUs in
the internal revenue taxes. Item No. 1, Special Provisions, Title XXXVI – A. Internal
Revenue Allotment of Rep. Act No. 8745 contained the following proviso:
... PROVIDED, That the amount of FIVE BILLION PESOS (₱5,000,000,000) shall be
earmarked for the Local Government Service Equalization Fund for the funding
requirements of projects and activities arising from the full and efficient
implementation of devolved functions and services of local government units
pursuant to R.A. No. 7160, otherwise known as the Local Government Code of 1991:
PROVIDED, FURTHER, That such amount shall be released to the local
government units subject to the implementing rules and regulations, including such
mechanisms and guidelines for the equitable allocations and distribution of said fund
among local government units subject to the guidelines that may be prescribed by
the Oversight Committee on Devolution as constituted pursuant to Book IV, Title III,
Section 533(b) of R.A. No. 7160. The Internal Revenue Allotment shall be released
directly by the Department of Budget and Management to the Local Government
Units concerned.
On July 28, 1999, the Oversight Committee (with then Executive Secretary Ronaldo
B. Zamora as Chairman) passed Resolution Nos. OCD-99-003, OCD-99-005 and
OCD-99-006 entitled as follows:
OCD-99-005
RESOLUTION ADOPTING THE ALLOCATION SCHEME FOR THE PhP5 BILLION
CY 1999 LOCAL GOVERNMENT SERVICE EQUALIZATION FUND (LGSEF) AND
REQUESTING HIS EXCELLENCY PRESIDENT JOSEPH EJERCITO ESTRADA
TO APPROVE SAID ALLOCATION SCHEME.
OCD-99-006
RESOLUTION ADOPTING THE ALLOCATION SCHEME FOR THE PhP4.0
BILLION OF THE 1999 LOCAL GOVERNMENT SERVICE EQUALIZATION FUND
AND ITS CONCOMITANT GENERAL FRAMEWORK, IMPLEMENTING
GUIDELINES AND MECHANICS FOR ITS IMPLEMENTATION AND RELEASE, AS
PROMULGATED BY THE OVERSIGHT COMMITTEE ON DEVOLUTION.
OCD-99-003
RESOLUTION REQUESTING HIS EXCELLENCY PRESIDENT JOSEPH
EJERCITO ESTRADA TO APPROVE THE REQUEST OF THE OVERSIGHT
COMMITTEE ON DEVOLUTION TO SET ASIDE TWENTY PERCENT (20%) OF
Josef Elvin Campos
THE LOCAL GOVERNMENT SERVICE EQUALIZATION FUND (LGSEF) FOR
LOCAL AFFIRMATIVE ACTION PROJECTS AND OTHER PRIORITY INITIATIVES
FOR LGUs INSTITUTIONAL AND CAPABILITY BUILDING IN ACCORDANCE
WITH THE IMPLEMENTING GUIDELINES AND MECHANICS AS PROMULGATED
BY THE COMMITTEE.
These OCD resolutions were approved by then President Estrada on October 6,
1999.
Under the allocation scheme adopted pursuant to Resolution No. OCD-99-005, the
five billion pesos LGSEF was to be allocated as follows:
1. The PhP4 Billion of the LGSEF shall be allocated in accordance with the
allocation scheme and implementing guidelines and mechanics promulgated
and adopted by the OCD. To wit:
a. The first PhP2 Billion of the LGSEF shall be allocated in accordance
with the codal formula sharing scheme as prescribed under the 1991
Local Government Code;
b. The second PhP2 Billion of the LGSEF shall be allocated in
accordance with a modified 1992 cost of devolution fund (CODEF)
sharing scheme, as recommended by the respective leagues of
provinces, cities and municipalities to the OCD. The modified CODEF
sharing formula is as follows:
Province : 40%
Cities : 20%
Municipalities : 40%
This is applied to the P2 Billion after the approved amounts granted to
individual provinces, cities and municipalities as assistance to cover decrease
in 1999 IRA share due to reduction in land area have been taken out.
2. The remaining PhP1 Billion of the LGSEF shall be earmarked to support local
affirmative action projects and other priority initiatives submitted by LGUs to the
Oversight Committee on Devolution for approval in accordance with its prescribed
guidelines as promulgated and adopted by the OCD.
In Resolution No. OCD-99-003, the Oversight Committee set aside the one billion pesos or
20% of the LGSEF to support Local Affirmative Action Projects (LAAPs) of LGUs. This
remaining amount was intended to "respond to the urgent need for additional funds
assistance, otherwise not available within the parameters of other existing fund sources."
For LGUs to be eligible for funding under the one-billion-peso portion of the LGSEF, the
OCD promulgated the following:
III. CRITERIA FOR ELIGIBILITY:

1. LGUs (province, city, municipality, or barangay), individually or by group or multi-
LGUs or leagues of LGUs, especially those belonging to the 5th and 6th class, may
access the fund to support any projects or activities that satisfy any of the aforecited
purposes. A barangay may also access this fund directly or through their respective
municipality or city.
2. The proposed project/activity should be need-based, a local priority, with high
development impact and are congruent with the socio-cultural, economic and
development agenda of the Estrada Administration, such as food security, poverty
alleviation, electrification, and peace and order, among others.
3. Eligible for funding under this fund are projects arising from, but not limited to, the
following areas of concern:
a. delivery of local health and sanitation services, hospital services and other
tertiary services;
b. delivery of social welfare services;
c. provision of socio-cultural services and facilities for youth and community
development;
d. provision of agricultural and on-site related research;
e. improvement of community-based forestry projects and other local projects
on environment and natural resources protection and conservation;
f. improvement of tourism facilities and promotion of tourism;
g. peace and order and public safety;
h. construction, repair and maintenance of public works and infrastructure,
including public buildings and facilities for public use, especially those
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destroyed or damaged by man-made or natural calamities and disaster as
well as facilities for water supply, flood control and river dikes;
i. provision of local electrification facilities;
j. livelihood and food production services, facilities and equipment;
k. other projects that may be authorized by the OCD consistent with the
aforementioned objectives and guidelines;
4. Except on extremely meritorious cases, as may be determined by the Oversight
Committee on Devolution, this portion of the LGSEF shall not be used in
expenditures for personal costs or benefits under existing laws applicable to
governments. Generally, this fund shall cover the following objects of expenditures
for programs, projects and activities arising from the implementation of devolved and
regular functions and services:
a. acquisition/procurement of supplies and materials critical to the full and

effective implementation of devolved programs, projects and activities;
b. repair and/or improvement of facilities;
c. repair and/or upgrading of equipment;
d. acquisition of basic equipment;
e. construction of additional or new facilities;
f. counterpart contribution to joint arrangements or collective projects among
groups of municipalities, cities and/or provinces related to devolution and
delivery of basic services.
5. To be eligible for funding, an LGU or group of LGU shall submit to the Oversight
Committee on Devolution through the Department of Interior and Local
Governments, within the prescribed schedule and timeframe, a Letter Request for
Funding Support from the Affirmative Action Program under the LGSEF, duly signed
by the concerned LGU(s) and endorsed by cooperators and/or beneficiaries, as well
as the duly signed Resolution of Endorsement by the respective Sanggunian(s) of
the LGUs concerned. The LGU-proponent shall also be required to submit the
Project Request (PR), using OCD Project Request Form No. 99-02, that details the
following:
(a) general description or brief of the project;
(b) objectives and justifications for undertaking the project, which should
highlight the benefits to the locality and the expected impact to the local
program/project arising from the full and efficient implementation of social
services and facilities, at the local levels;
(c) target outputs or key result areas;
(d) schedule of activities and details of requirements;
(e) total cost requirement of the project;
(f) proponent's counterpart funding share, if any, and identified source(s) of
counterpart funds for the full implementation of the project;
(g) requested amount of project cost to be covered by the LGSEF.
Further, under the guidelines formulated by the Oversight Committee as contained in

Attachment - Resolution No. OCD-99-003, the LGUs were required to identify the projects
eligible for funding under the one-billion-peso portion of the LGSEF and submit the project
proposals thereof and other documentary requirements to the DILG for appraisal. The
project proposals that passed the DILG's appraisal would then be submitted to the
Oversight Committee for review, evaluation and approval. Upon its approval, the Oversight
Committee would then serve notice to the DBM for the preparation of the Special Allotment
Release Order (SARO) and Notice of Cash Allocation (NCA) to effect the release of funds
to the said LGUs.
Under Rep. Act No. 8760, otherwise known as the GAA of 2000, the amount of
₱111,778,000,000 was allotted as the share of the LGUs in the internal revenue taxes. As
in the GAA of 1999, the GAA of 2000 contained a proviso earmarking five billion pesos of
the IRA for the LGSEF. This proviso, found in Item No. 1, Special Provisions, Title XXXVII –
A. Internal Revenue Allotment, was similarly worded as that contained in the GAA of 1999.
The Oversight Committee, in its Resolution No. OCD-2000-023 dated June 22, 2000,
adopted the following allocation scheme governing the five billion pesos LGSEF for 2000:
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1. The PhP3.5 Billion of the CY 2000 LGSEF shall be allocated to and shared by the
four levels of LGUs, i.e., provinces, cities, municipalities, and barangays, using the
following percentage-sharing formula agreed upon and jointly endorsed by the
various Leagues of LGUs:
For Provinces 26% or ₱ 910,000,000
For Cities 23% or 805,000,000
For Municipalities 35% or 1,225,000,000
For Barangays 16% or 560,000,000
Provided that the respective Leagues representing the provinces, cities,
municipalities and barangays shall draw up and adopt the horizontal
distribution/sharing schemes among the member LGUs whereby the Leagues
concerned may opt to adopt direct financial assistance or project-based
arrangement, such that the LGSEF allocation for individual LGU shall be released
directly to the LGU concerned;
Provided further that the individual LGSEF shares to LGUs are used in accordance
with the general purposes and guidelines promulgated by the OCD for the
implementation of the LGSEF at the local levels pursuant to Res. No. OCD-99-006
dated October 7, 1999 and pursuant to the Leagues' guidelines and mechanism as
approved by the OCD;
Provided further that each of the Leagues shall submit to the OCD for its approval
their respective allocation scheme, the list of LGUs with the corresponding LGSEF
shares and the corresponding project categories if project-based;
Provided further that upon approval by the OCD, the lists of LGUs shall be endorsed
to the DBM as the basis for the preparation of the corresponding NCAs, SAROs, and
related budget/release documents.
3. The remaining ₱1,500,000,000 of the CY 2000 LGSEF shall be

earmarked to support the following initiatives and local affirmative action
projects, to be endorsed to and approved by the Oversight Committee on
Devolution in accordance with the OCD agreements, guidelines,
procedures and documentary requirements:
4.
On July 5, 2000, then President Estrada issued a Memorandum authorizing then
Executive Secretary Zamora and the DBM to implement and release the 2.5 billion
pesos LGSEF for 2000 in accordance with Resolution No. OCD-2000-023.
Thereafter, the Oversight Committee, now under the administration of President

Gloria Macapagal-Arroyo, promulgated Resolution No. OCD-2001-29 entitled
"ADOPTING RESOLUTION NO. OCD-2000-023 IN THE ALLOCATION,
IMPLEMENTATION AND RELEASE OF THE REMAINING ₱2.5 BILLION LGSEF
FOR CY 2000." Under this resolution, the amount of one billion pesos of the LGSEF
was to be released in accordance with paragraph 1 of Resolution No. OCD-2000-23,
to complete the 3.5 billion pesos allocated to the LGUs, while the amount of 1.5
billion pesos was allocated for the LAAP. However, out of the latter amount,
₱400,000,000 was to be allocated and released as follows: ₱50,000,000 as financial
assistance to the LAAPs of LGUs; ₱275,360,227 as financial assistance to cover the
decrease in the IRA of LGUs concerned due to reduction in land area; and
₱74,639,773 for the LGSEF Capability-Building Fund.
In view of the failure of Congress to enact the general appropriations law for 2001,
the GAA of 2000 was deemed re-enacted, together with the IRA of the LGUs therein
and the proviso earmarking five billion pesos thereof for the LGSEF.
On January 9, 2002, the Oversight Committee adopted Resolution No. OCD-2002-
001 allocating the five billion pesos LGSEF for 2001 as follows:
Modified Codal Formula ₱ 3.000 billion
Priority Projects 1.900 billion
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Capability Building Fund .100 billion
₱ 5.000 billion
RESOLVED FURTHER, that the ₱3.0 B of the CY 2001 LGSEF which is to be allocated
according to the modified codal formula shall be released to the four levels of LGUs, i.e.,
provinces, cities, municipalities and barangays, as follows:
Percentag
LGUs Amount
e
Provinces 25 ₱ 0.750 billion
Cities 25 0.750
Municipalitie
35 1.050
s
Barangays 15 0.450
100 ₱ 3.000 billion
RESOLVED FURTHER, that the ₱1.9 B earmarked for priority projects shall be distributed
according to the following criteria:
1.0 For projects of the 4th, 5th and 6th class LGUs; or
2.0 Projects in consonance with the President's State of the Nation Address
(SONA)/summit commitments.
RESOLVED FURTHER, that the remaining ₱100 million LGSEF capability building fund
shall be distributed in accordance with the recommendation of the Leagues of Provinces,
Cities, Municipalities and Barangays, and approved by the OCD.
Upon receipt of a copy of the above resolution, Gov. Mandanas wrote to the individual
members of the Oversight Committee seeking the reconsideration of Resolution No. OCD-
2002-001. He also wrote to Pres. Macapagal-Arroyo urging her to disapprove said
resolution as it violates the Constitution and the Local Government Code of 1991.
On January 25, 2002, Pres. Macapagal-Arroyo approved Resolution No. OCD-2002-001.
The Petitioner's Case
The petitioner now comes to this Court assailing as unconstitutional and void the provisos in
the GAAs of 1999, 2000 and 2001, relating to the LGSEF. Similarly assailed are the
Oversight Committee's Resolutions Nos. OCD-99-003, OCD-99-005, OCD-99-006, OCD-
2000-023, OCD-2001-029 and OCD-2002-001 issued pursuant thereto. The petitioner
submits that the assailed provisos in the GAAs and the OCD resolutions, insofar as they
earmarked the amount of five billion pesos of the IRA of the LGUs for 1999, 2000 and 2001
for the LGSEF and imposed conditions for the release thereof, violate the Constitution and
the Local Government Code of 1991.
Section 6, Article X of the Constitution is invoked as it mandates that the "just share" of the
LGUs shall be automatically released to them. Sections 18 and 286 of the Local
Government Code of 1991, which enjoin that the "just share" of the LGUs shall be
"automatically and directly" released to them "without need of further action" are, likewise,
cited.
The petitioner posits that to subject the distribution and release of the five-billion-peso
portion of the IRA, classified as the LGSEF, to compliance by the LGUs with the
implementing rules and regulations, including the mechanisms and guidelines prescribed by
the Oversight Committee, contravenes the explicit directive of the Constitution that the
LGUs' share in the national taxes "shall be automatically released to them." The petitioner
maintains that the use of the word "shall" must be given a compulsory meaning.
To further buttress this argument, the petitioner contends that to vest the Oversight
Committee with the authority to determine the distribution and release of the LGSEF, which
is a part of the IRA of the LGUs, is an anathema to the principle of local autonomy as
embodied in the Constitution and the Local Government Code of 1991. The petitioner cites
as an example the experience in 2001 when the release of the LGSEF was long delayed
because the Oversight Committee was not able to convene that year and no guidelines
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were issued therefor. Further, the possible disapproval by the Oversight Committee of the
project proposals of the LGUs would result in the diminution of the latter's share in the IRA.
Another infringement alleged to be occasioned by the assailed OCD resolutions is the
improper amendment to Section 285 of the Local Government Code of 1991 on the
percentage sharing of the IRA among the LGUs. Said provision allocates the IRA as
follows: Provinces – 23%; Cities – 23%; Municipalities – 34%; and Barangays – 20%. 8 This
formula has been improperly amended or modified, with respect to the five-billion-peso
portion of the IRA allotted for the LGSEF, by the assailed OCD resolutions as they
invariably provided for a different sharing scheme.
The modifications allegedly constitute an illegal amendment by the executive branch of a

substantive law. Moreover, the petitioner mentions that in the Letter dated December 5,
2001 of respondent Executive Secretary Romulo addressed to respondent Secretary
Boncodin, the former endorsed to the latter the release of funds to certain LGUs from the
LGSEF in accordance with the handwritten instructions of President Arroyo. Thus, the LGUs
are at a loss as to how a portion of the LGSEF is actually allocated. Further, there are still
portions of the LGSEF that, to date, have not been received by the petitioner; hence,
resulting in damage and injury to the petitioner.
The petitioner prays that the Court declare as unconstitutional and void the assailed
provisos relating to the LGSEF in the GAAs of 1999, 2000 and 2001 and the assailed OCD
resolutions (Resolutions Nos. OCD-99-003, OCD-99-005, OCD-99-006, OCD-2000-023,
OCD-2001-029 and OCD-2002-001) issued by the Oversight Committee pursuant thereto.
The petitioner, likewise, prays that the Court direct the respondents to rectify the unlawful
and illegal distribution and releases of the LGSEF for the aforementioned years and release
the same in accordance with the sharing formula under Section 285 of the Local
Government Code of 1991. Finally, the petitioner urges the Court to declare that the entire
IRA should be released automatically without further action by the LGUs as required by the
Constitution and the Local Government Code of 1991.
The Respondents' Arguments
The respondents, through the Office of the Solicitor General, urge the Court to dismiss the
petition on procedural and substantive grounds. On the latter, the respondents contend that
the assailed provisos in the GAAs of 1999, 2000 and 2001 and the assailed resolutions
issued by the Oversight Committee are not constitutionally infirm. The respondents advance
the view that Section 6, Article X of the Constitution does not specify that the "just share" of
the LGUs shall be determined solely by the Local Government Code of 1991. Moreover, the
phrase "as determined by law" in the same constitutional provision means that there exists
no limitation on the power of Congress to determine what is the "just share" of the LGUs in
the national taxes. In other words, Congress is the arbiter of what should be the "just share"
of the LGUs in the national taxes.
The respondents further theorize that Section 285 of the Local Government Code of 1991,
which provides for the percentage sharing of the IRA among the LGUs, was not intended to
be a fixed determination of their "just share" in the national taxes. Congress may enact
other laws, including appropriations laws such as the GAAs of 1999, 2000 and 2001,
providing for a different sharing formula. Section 285 of the Local Government Code of
1991 was merely intended to be the "default share" of the LGUs to do away with the need to
determine annually by law their "just share." However, the LGUs have no vested right in a
permanent or fixed percentage as Congress may increase or decrease the "just share" of
the LGUs in accordance with what it believes is appropriate for their operation. There is
nothing in the Constitution which prohibits Congress from making such determination
through the appropriations laws. If the provisions of a particular statute, the GAA in this
case, are within the constitutional power of the legislature to enact, they should be
sustained whether the courts agree or not in the wisdom of their enactment.
On procedural grounds, the respondents urge the Court to dismiss the petition outright as
the same is defective. The petition allegedly raises factual issues which should be properly
threshed out in the lower courts, not this Court, not being a trier of facts. Specifically, the
petitioner's allegation that there are portions of the LGSEF that it has not, to date, received,
thereby causing it (the petitioner) injury and damage, is subject to proof and must be
substantiated in the proper venue, i.e., the lower courts.
Josef Elvin Campos
Further, according to the respondents, the petition has already been rendered moot and
academic as it no longer presents a justiciable controversy. The IRAs for the years 1999,
2000 and 2001, have already been released and the government is now operating under
the 2003 budget. In support of this, the respondents submitted certifications issued by
officers of the DBM attesting to the release of the allocation or shares of the petitioner in the
LGSEF for 1999, 2000 and 2001. There is, therefore, nothing more to prohibit.
Finally, the petitioner allegedly has no legal standing to bring the suit because it has not
suffered any injury. In fact, the petitioner's "just share" has even increased. Pursuant to
Section 285 of the Local Government Code of 1991, the share of the provinces is 23%.
OCD Nos. 99-005, 99-006 and 99-003 gave the provinces 40% of ₱2 billion of the LGSEF.
OCD Nos. 2000-023 and 2001-029 apportioned 26% of ₱3.5 billion to the provinces. On the
other hand, OCD No. 2001-001 allocated 25% of ₱3 billion to the provinces. Thus, the
petitioner has not suffered any injury in the implementation of the assailed provisos in the
GAAs of 1999, 2000 and 2001 and the OCD resolutions.
The Ruling of the Court Procedural Issues
Before resolving the petition on its merits, the Court shall first rule on the following
procedural issues raised by the respondents: (1) whether the petitioner has legal standing
or locus standi to file the present suit; (2) whether the petition involves factual questions that
are properly cognizable by the lower courts; and (3) whether the issue had been rendered
moot and academic.
The petitioner has locus standi to maintain the present suit
The gist of the question of standing is whether a party has "alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."9 Accordingly, it has been held that the interest of a party assailing
the constitutionality of a statute must be direct and personal. Such party must be able to
show, not only that the law or any government act is invalid, but also that he has sustained
or is in imminent danger of sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of the
statute or act complained of.10
The Court holds that the petitioner possesses the requisite standing to maintain the present
suit. The petitioner, a local government unit, seeks relief in order to protect or vindicate an
interest of its own, and of the other LGUs. This interest pertains to the LGUs' share in the
national taxes or the IRA. The petitioner's constitutional claim is, in substance, that the
assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions
contravene Section 6, Article X of the Constitution, mandating the "automatic release" to the
LGUs of their share in the national taxes. Further, the injury that the petitioner claims to
suffer is the diminution of its share in the IRA, as provided under Section 285 of the Local
Government Code of 1991, occasioned by the implementation of the assailed measures.
These allegations are sufficient to grant the petitioner standing to question the validity of the
assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions as the
petitioner clearly has "a plain, direct and adequate interest" in the manner and distribution of
the IRA among the LGUs.
The petition involves a significant legal issue
The crux of the instant controversy is whether the assailed provisos contained in the GAAs
of 1999, 2000 and 2001, and the OCD resolutions infringe the Constitution and the Local
Government Code of 1991. This is undoubtedly a legal question. On the other hand, the
following facts are not disputed:
1. The earmarking of five billion pesos of the IRA for the LGSEF in the assailed
provisos in the GAAs of 1999, 2000 and re-enacted budget for 2001;
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2. The promulgation of the assailed OCD resolutions providing for the allocation
schemes covering the said five billion pesos and the implementing rules and
regulations therefor; and
3. The release of the LGSEF to the LGUs only upon their compliance with the
implementing rules and regulations, including the guidelines and mechanisms,
prescribed by the Oversight Committee.
Considering that these facts, which are necessary to resolve the legal question now before
this Court, are no longer in issue, the same need not be determined by a trial court. 11 In any
case, the rule on hierarchy of courts will not prevent this Court from assuming jurisdiction
over the petition. The said rule may be relaxed when the redress desired cannot be
obtained in the appropriate courts or where exceptional and compelling circumstances
justify availment of a remedy within and calling for the exercise of this Court's primary
jurisdiction.12
The crucial legal issue submitted for resolution of this Court entails the proper legal
interpretation of constitutional and statutory provisions. Moreover, the "transcendental
importance" of the case, as it necessarily involves the application of the constitutional
principle on local autonomy, cannot be gainsaid. The nature of the present controversy,
therefore, warrants the relaxation by this Court of procedural rules in order to resolve the
case forthwith.
The substantive issue needs to be resolved notwithstanding the supervening events

Granting arguendo that, as contended by the respondents, the resolution of the case had
already been overtaken by supervening events as the IRA, including the LGSEF, for 1999,
2000 and 2001, had already been released and the government is now operating under a
new appropriations law, still, there is compelling reason for this Court to resolve the
substantive issue raised by the instant petition. Supervening events, whether intended or
accidental, cannot prevent the Court from rendering a decision if there is a grave violation of
the Constitution.13 Even in cases where supervening events had made the cases moot, the
Court did not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar and public. 14
Another reason justifying the resolution by this Court of the substantive issue now before it
is the rule that courts will decide a question otherwise moot and academic if it is "capable of
repetition, yet evading review."15 For the GAAs in the coming years may contain provisos
similar to those now being sought to be invalidated, and yet, the question may not be
decided before another GAA is enacted. It, thus, behooves this Court to make a categorical
ruling on the substantive issue now.
Substantive Issue
As earlier intimated, the resolution of the substantive legal issue in this case calls for the
application of a most important constitutional policy and principle, that of local
autonomy.16 In Article II of the Constitution, the State has expressly adopted as a policy
that:
Section 25. The State shall ensure the autonomy of local governments.
An entire article (Article X) of the Constitution has been devoted to guaranteeing and
promoting the autonomy of LGUs. Section 2 thereof reiterates the State policy in this wise:
Section 2. The territorial and political subdivisions shall enjoy local autonomy.
Consistent with the principle of local autonomy, the Constitution confines the President's
power over the LGUs to one of general supervision. 17 This provision has been interpreted to
exclude the power of control. The distinction between the two powers was enunciated in
Drilon v. Lim:18
An officer in control lays down the rules in the doing of an act. If they are not followed, he
may, in his discretion, order the act undone or re-done by his subordinate or he may even
decide to do it himself. Supervision does not cover such authority. The supervisor or
superintendent merely sees to it that the rules are followed, but he himself does not lay
down such rules, nor does he have the discretion to modify or replace them. If the rules are
not observed, he may order the work done or re-done but only to conform to the prescribed
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rules. He may not prescribe his own manner for doing the act. He has no judgment on this
matter except to see to it that the rules are followed. 19
The Local Government Code of 1991 20 was enacted to flesh out the mandate of the
Constitution.21 The State policy on local autonomy is amplified in Section 2 thereof:
make them more effective partners in the attainment of national goals. Toward this end, the
decentralization shall proceed from the National Government to the local government units.
Guided by these precepts, the Court shall now determine whether the assailed provisos in
the GAAs of 1999, 2000 and 2001, earmarking for each corresponding year the amount of
five billion pesos of the IRA for the LGSEF and the OCD resolutions promulgated pursuant
thereto, transgress the Constitution and the Local Government Code of 1991.
The assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions violate
the constitutional precept on local autonomy
Section 6, Article X of the Constitution reads:
Sec. 6. Local government units shall have a just share, as determined by law, in the
national taxes which shall be automatically released to them.
When parsed, it would be readily seen that this provision mandates that (1) the LGUs shall
have a "just share" in the national taxes; (2) the "just share" shall be determined by law; and
(3) the "just share" shall be automatically released to the LGUs.
The Local Government Code of 1991, among its salient provisions, underscores the
automatic release of the LGUs' "just share" in this wise:
Sec. 18. Power to Generate and Apply Resources. Local government units shall have the
power and authority to establish an organization that shall be responsible for the efficient
and effective implementation of their development plans, program objectives and priorities;
to create their own sources of revenue and to levy taxes, fees, and charges which shall
accrue exclusively for their use and disposition and which shall be retained by them; to have
a just share in national taxes which shall be automatically and directly released to them
without need of further action;
...
Sec. 286. Automatic Release of Shares. (a) The share of each local government unit shall
be released, without need of any further action, directly to the provincial, city, municipal or
barangay treasurer, as the case may be, on a quarterly basis within five (5) days after the
end of each quarter, and which shall not be subject to any lien or holdback that may be
imposed by the national government for whatever purpose.
(b) Nothing in this Chapter shall be understood to diminish the share of local government
units under existing laws.
Webster's Third New International Dictionary defines "automatic" as "involuntary either

wholly or to a major extent so that any activity of the will is largely negligible; of a reflex
nature; without volition; mechanical; like or suggestive of an automaton." Further, the word
"automatically" is defined as "in an automatic manner: without thought or conscious
intention." Being "automatic," thus, connotes something mechanical, spontaneous and
perfunctory. As such, the LGUs are not required to perform any act to receive the "just
share" accruing to them from the national coffers. As emphasized by the Local Government
Code of 1991, the "just share" of the LGUs shall be released to them "without need of
further action." Construing Section 286 of the LGC, we held in Pimentel, Jr. v. Aguirre, 22 viz:
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the automatic release of the shares of LGUs in the National internal revenue. This is
mandated by no less than the Constitution. The Local Government Code specifies further
the national government for whatever purpose." As a rule, the term "SHALL" is a word of
command that must be given a compulsory meaning. The provision is, therefore,
IMPERATIVE.

withholding clearly contravenes the Constitution and the law. Although temporary, it is
equivalent to a holdback, which means "something held back or withheld, often
temporarily." Hence, the "temporary" nature of the retention by the national government
does not matter. Any retention is prohibited.
In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of

national crisis, Section 4 thereof has no color of validity at all. The latter provision effectively
encroaches on the fiscal autonomy of local governments. Concededly, the President was
well-intentioned in issuing his Order to withhold the LGUs' IRA, but the rule of law requires
that even the best intentions must be carried out within the parameters of the Constitution
and the law. Verily, laudable purposes must be carried out by legal methods. 23
The "just share" of the LGUs is incorporated as the IRA in the appropriations law or GAA
enacted by Congress annually. Under the assailed provisos in the GAAs of 1999, 2000 and
2001, a portion of the IRA in the amount of five billion pesos was earmarked for the LGSEF,
and these provisos imposed the condition that "such amount shall be released to the local
government units subject to the implementing rules and regulations, including such
mechanisms and guidelines for the equitable allocations and distribution of said fund among
local government units subject to the guidelines that may be prescribed by the Oversight
Committee on Devolution." Pursuant thereto, the Oversight Committee, through the assailed
OCD resolutions, apportioned the five billion pesos LGSEF such that:
For 1999
₱2 billion - allocated according to Sec. 285 LGC
₱2 billion - Modified Sharing Formula (Provinces – 40%;
Cities – 20%; Municipalities – 40%)
₱1 billion – projects (LAAP) approved by OCD. 24
For 2000
₱3.5 billion – Modified Sharing Formula (Provinces – 26%;
Cities – 23%; Municipalities – 35%; Barangays – 16%);
₱1.5 billion – projects (LAAP) approved by the OCD. 25
For 2001
₱3 billion – Modified Sharing Formula (Provinces – 25%;
Cities – 25%; Municipalities – 35%; Barangays – 15%)
₱1.9 billion – priority projects
₱100 million – capability building fund.26
Significantly, the LGSEF could not be released to the LGUs without the Oversight
Committee's prior approval. Further, with respect to the portion of the LGSEF allocated for
various projects of the LGUs (₱1 billion for 1999; ₱1.5 billion for 2000 and ₱2 billion for
2001), the Oversight Committee, through the assailed OCD resolutions, laid down
guidelines and mechanisms that the LGUs had to comply with before they could avail of
funds from this portion of the LGSEF. The guidelines required (a) the LGUs to identify the
projects eligible for funding based on the criteria laid down by the Oversight Committee; (b)
the LGUs to submit their project proposals to the DILG for appraisal; (c) the project
proposals that passed the appraisal of the DILG to be submitted to the Oversight
Committee for review, evaluation and approval. It was only upon approval thereof that the
Oversight Committee would direct the DBM to release the funds for the projects.
To the Court's mind, the entire process involving the distribution and release of the LGSEF
is constitutionally impermissible. The LGSEF is part of the IRA or "just share" of the LGUs in
Josef Elvin Campos
the national taxes. To subject its distribution and release to the vagaries of the
implementing rules and regulations, including the guidelines and mechanisms unilaterally
prescribed by the Oversight Committee from time to time, as sanctioned by the assailed
provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions, makes the
release not automatic, a flagrant violation of the constitutional and statutory mandate that
the "just share" of the LGUs "shall be automatically released to them." The LGUs are, thus,
placed at the mercy of the Oversight Committee.
Where the law, the Constitution in this case, is clear and unambiguous, it must be taken to
mean exactly what it says, and courts have no choice but to see to it that the mandate is
obeyed.27 Moreover, as correctly posited by the petitioner, the use of the word "shall"
connotes a mandatory order. Its use in a statute denotes an imperative obligation and is
inconsistent with the idea of discretion. 28
Indeed, the Oversight Committee exercising discretion, even control, over the distribution
and release of a portion of the IRA, the LGSEF, is an anathema to and subversive of the
principle of local autonomy as embodied in the Constitution. Moreover, it finds no statutory
basis at all as the Oversight Committee was created merely to formulate the rules and
regulations for the efficient and effective implementation of the Local Government Code of
1991 to ensure "compliance with the principles of local autonomy as defined under the
Constitution."29 In fact, its creation was placed under the title of "Transitory Provisions,"
signifying its ad hoc character. According to Senator Aquilino Q. Pimentel, the principal
author and sponsor of the bill that eventually became Rep. Act No. 7160, the Committee's
work was supposed to be done a year from the approval of the Code, or on October 10,
1992.30 The Oversight Committee's authority is undoubtedly limited to the implementation of
the Local Government Code of 1991, not to supplant or subvert the same. Neither can it
exercise control over the IRA, or even a portion thereof, of the LGUs.
That the automatic release of the IRA was precisely intended to guarantee and promote
local autonomy can be gleaned from the discussion below between Messrs. Jose N.
Nolledo and Regalado M. Maambong, then members of the 1986 Constitutional
Commission, to wit:
MR. MAAMBONG. Unfortunately, under Section 198 of the Local Government Code, the
existence of subprovinces is still acknowledged by the law, but the statement of the
Gentleman on this point will have to be taken up probably by the Committee on Legislation.
A second point, Mr. Presiding Officer, is that under Article 2, Section 10 of the 1973
Constitution, we have a provision which states:
The State shall guarantee and promote the autonomy of local government units, especially
the barrio, to insure their fullest development as self-reliant communities.
This provision no longer appears in the present configuration; does this mean that the
concept of giving local autonomy to local governments is no longer adopted as far as this
Article is concerned?
MR. NOLLEDO. No. In the report of the Committee on Preamble, National Territory, and
Declaration of Principles, that concept is included and widened upon the initiative of
Commissioner Bennagen.
MR. MAAMBONG. Thank you for that.
With regard to Section 6, sources of revenue, the creation of sources as provided by

previous law was "subject to limitations as may be provided by law," but now, we are using
the term "subject to such guidelines as may be fixed by law." In Section 7, mention is made
about the "unique, distinct and exclusive charges and contributions," and in Section 8, we
talk about "exclusivity of local taxes and the share in the national wealth." Incidentally, I was
one of the authors of this provision, and I am very thankful. Does this indicate local
autonomy, or was the wording of the law changed to give more autonomy to the local
government units?31
MR. NOLLEDO. Yes. In effect, those words indicate also "decentralization" because local
political units can collect taxes, fees and charges subject merely to guidelines, as
Josef Elvin Campos
recommended by the league of governors and city mayors, with whom I had a dialogue for
almost two hours. They told me that limitations may be questionable in the sense that
Congress may limit and in effect deny the right later on.
MR. MAAMBONG. Also, this provision on "automatic release of national tax share" points to
more local autonomy. Is this the intention?
MR. NOLLEDO. Yes, the Commissioner is perfectly right. 32
The concept of local autonomy was explained in Ganzon v. Court of Appeals 33 in this wise:
As the Constitution itself declares, local autonomy 'means a more responsive and
accountable local government structure instituted through a system of decentralization.' The
Constitution, as we observed, does nothing more than to break up the monopoly of the
national government over the affairs of local governments and as put by political adherents,
to "liberate the local governments from the imperialism of Manila." Autonomy, however, is
not meant to end the relation of partnership and interdependence between the central
administration and local government units, or otherwise, to usher in a regime of federalism.
The Charter has not taken such a radical step. Local governments, under the Constitution,
are subject to regulation, however limited, and for no other purpose than precisely, albeit
paradoxically, to enhance self-government.
As we observed in one case, decentralization means devolution of national administration –

but not power – to the local levels. Thus:
Now, autonomy is either decentralization of administration or decentralization of power.

power and in the process to make local governments 'more responsive and accountable'
and 'ensure their fullest development as self-reliant communities and make them more
effective partners in the pursuit of national development and social progress.' At the same
time, it relieves the central government of the burden of managing local affairs and enables
it to concentrate on national concerns. The President exercises 'general supervision' over
them, but only to 'ensure that local affairs are administered according to law.' He has no
control over their acts in the sense that he can substitute their judgments with his own.
[sic] favor of local governments [sic] units declared to be autonomous. In that case, the
autonomous government is free to chart its own destiny and shape its future with minimum
intervention from central authorities. According to a constitutional author, decentralization of
power amounts to 'self-immolation,' since in that event, the autonomous government
becomes accountable not to the central authorities but to its constituency. 34
Local autonomy includes both administrative and fiscal autonomy. The fairly recent case of
Pimentel v. Aguirre35 is particularly instructive. The Court declared therein that local fiscal
autonomy includes the power of the LGUs to, inter alia, allocate their resources in
accordance with their own priorities:
Under existing law, local government units, in addition to having administrative autonomy in
the exercise of their functions, enjoy fiscal autonomy as well. Fiscal autonomy means that
power to allocate their resources in accordance with their own priorities. It extends to the
thereof. They are not formulated at the national level and imposed on local governments,
whether they are relevant to local needs and resources or not ... 36
Further, a basic feature of local fiscal autonomy is the constitutionally mandated automatic
release of the shares of LGUs in the national internal revenue. 37
Following this ratiocination, the Court in Pimentel struck down as unconstitutional Section 4
of Administrative Order (A.O.) No. 372 which ordered the withholding, effective January 1,
1998, of ten percent of the LGUs' IRA "pending the assessment and evaluation by the
Development Budget Coordinating Committee of the emerging fiscal situation."
Josef Elvin Campos
In like manner, the assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD
resolutions constitute a "withholding" of a portion of the IRA. They put on hold the
distribution and release of the five billion pesos LGSEF and subject the same to the
implementing rules and regulations, including the guidelines and mechanisms prescribed by
the Oversight Committee from time to time. Like Section 4 of A.O. 372, the assailed
provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions effectively encroach
on the fiscal autonomy enjoyed by the LGUs and must be struck down. They cannot,
therefore, be upheld.
The assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions cannot
amend Section 285 of the Local Government Code of 1991
Section 28438 of the Local Government Code provides that, beginning the third year of its
effectivity, the LGUs' share in the national internal revenue taxes shall be 40%. This
percentage is fixed and may not be reduced except "in the event the national government
incurs an unmanageable public sector deficit" and only upon compliance with stringent
requirements set forth in the same section:
Sec. 284. ...
Provided, That in the event that the national government incurs an unmanageable public
sector deficit, the President of the Philippines is hereby authorized, upon recommendation
of Secretary of Finance, Secretary of Interior and Local Government and Secretary of
Budget and Management, and subject to consultation with the presiding officers of both
Houses of Congress and the presidents of the liga, to make the necessary adjustments in
the internal revenue allotment of local government units but in no case shall the allotment
be less than thirty percent (30%) of the collection of the national internal revenue taxes of
the third fiscal year preceding the current fiscal year; Provided, further That in the first year
of the effectivity of this Code, the local government units shall, in addition to the thirty
percent (30%) internal revenue allotment which shall include the cost of devolved functions
for essential public services, be entitled to receive the amount equivalent to the cost of
devolved personnel services.
Thus, from the above provision, the only possible exception to the mandatory automatic
release of the LGUs' IRA is if the national internal revenue collections for the current fiscal
year is less than 40 percent of the collections of the preceding third fiscal year, in which
case what should be automatically released shall be a proportionate amount of the
collections for the current fiscal year. The adjustment may even be made on a quarterly
basis depending on the actual collections of national internal revenue taxes for the quarter
of the current fiscal year. In the instant case, however, there is no allegation that the
national internal revenue tax collections for the fiscal years 1999, 2000 and 2001 have
fallen compared to the preceding three fiscal years.
Section 285 then specifies how the IRA shall be allocated among the LGUs:
Sec. 285. Allocation to Local Government Units. – The share of local government units in
the internal revenue allotment shall be allocated in the following manner:
(a) Provinces – Twenty-three (23%)

(b) Cities – Twenty-three percent (23%);
(c) Municipalities – Thirty-four (34%); and
(d) Barangays – Twenty percent (20%).
However, this percentage sharing is not followed with respect to the five billion pesos
LGSEF as the assailed OCD resolutions, implementing the assailed provisos in the GAAs of
1999, 2000 and 2001, provided for a different sharing scheme. For example, for 1999, ₱2
billion of the LGSEF was allocated as follows: Provinces – 40%; Cities – 20%; Municipalities
– 40%.39 For 2000, ₱3.5 billion of the LGSEF was allocated in this manner: Provinces –
26%; Cities – 23%; Municipalities – 35%; Barangays – 26%. 40 For 2001, ₱3 billion of the
LGSEF was allocated, thus: Provinces – 25%; Cities – 25%; Municipalities – 35%;
Barangays – 15%.41
Josef Elvin Campos
The respondents argue that this modification is allowed since the Constitution does not
specify that the "just share" of the LGUs shall only be determined by the Local Government
Code of 1991. That it is within the power of Congress to enact other laws, including the
GAAs, to increase or decrease the "just share" of the LGUs. This contention is untenable.
The Local Government Code of 1991 is a substantive law. And while it is conceded that
Congress may amend any of the provisions therein, it may not do so through appropriations
laws or GAAs. Any amendment to the Local Government Code of 1991 should be done in a
separate law, not in the appropriations law, because Congress cannot include in a general
appropriation bill matters that should be more properly enacted in a separate legislation. 42
A general appropriations bill is a special type of legislation, whose content is limited to

specified sums of money dedicated to a specific purpose or a separate fiscal unit. 43 Any
provision therein which is intended to amend another law is considered an "inappropriate
provision." The category of "inappropriate provisions" includes unconstitutional provisions
and provisions which are intended to amend other laws, because clearly these kinds of laws
have no place in an appropriations bill.44
Increasing or decreasing the IRA of the LGUs or modifying their percentage sharing therein,
which are fixed in the Local Government Code of 1991, are matters of general and
substantive law. To permit Congress to undertake these amendments through the GAAs, as
the respondents contend, would be to give Congress the unbridled authority to unduly
infringe the fiscal autonomy of the LGUs, and thus put the same in jeopardy every year.
This, the Court cannot sanction.
It is relevant to point out at this juncture that, unlike those of 1999, 2000 and 2001, the
GAAs of 2002 and 2003 do not contain provisos similar to the herein assailed provisos. In
other words, the GAAs of 2002 and 2003 have not earmarked any amount of the IRA for the
LGSEF. Congress had perhaps seen fit to discontinue the practice as it recognizes its
infirmity. Nonetheless, as earlier mentioned, this Court has deemed it necessary to make a
definitive ruling on the matter in order to prevent its recurrence in future appropriations laws
and that the principles enunciated herein would serve to guide the bench, bar and public.
Conclusion
In closing, it is well to note that the principle of local autonomy, while concededly
expounded in greater detail in the present Constitution, dates back to the turn of the century
when President William McKinley, in his Instructions to the Second Philippine Commission
dated April 7, 1900, ordered the new Government "to devote their attention in the first
instance to the establishment of municipal governments in which the natives of the Islands,
both in the cities and in the rural communities, shall be afforded the opportunity to manage
their own affairs to the fullest extent of which they are capable, and subject to the least
degree of supervision and control in which a careful study of their capacities and
observation of the workings of native control show to be consistent with the maintenance of
law, order and loyalty."45 While the 1935 Constitution had no specific article on local
autonomy, nonetheless, it limited the executive power over local governments to "general
supervision ... as may be provided by law." 46 Subsequently, the 1973 Constitution explicitly
stated that "[t]he State shall guarantee and promote the autonomy of local government
units, especially the barangay to ensure their fullest development as self-reliant
communities."47 An entire article on Local Government was incorporated therein. The
present Constitution, as earlier opined, has broadened the principle of local autonomy. The
14 sections in Article X thereof markedly increased the powers of the local governments in
order to accomplish the goal of a more meaningful local autonomy.
Indeed, the value of local governments as institutions of democracy is measured by the

degree of autonomy that they enjoy. 48 As eloquently put by M. De Tocqueville, a
distinguished French political writer, "[l]ocal assemblies of citizens constitute the strength of
free nations. Township meetings are to liberty what primary schools are to science; they
bring it within the people's reach; they teach men how to use and enjoy it. A nation may
establish a system of free governments but without the spirit of municipal institutions, it
cannot have the spirit of liberty."49
Josef Elvin Campos
Our national officials should not only comply with the constitutional provisions on local
autonomy but should also appreciate the spirit and liberty upon which these provisions are
based.50
WHEREFORE, the petition is GRANTED. The assailed provisos in the General

Appropriations Acts of 1999, 2000 and 2001, and the assailed OCD Resolutions, are
declared UNCONSTITUTIONAL.
SO ORDERED.
ROMEO J. CALLEJO, SR.

Associate Justice
ACORD v. Zamora (G.R. No. 144256, 08 June 2005)

G.R. No. 144256 June 8, 2005
ALTERNATIVE CENTER FOR ORGANIZATIONAL REFORMS AND DEVELOPMENT,
INC. (ACORD), BALAY MINDANAW FOUNDATION, INC. (BMFI); BARRIOS, INC.;
CAMARINES SUR NGO-PO DEVELOPMENT NETWORK, INC. (CADENET); CENTER
FOR PARTICIPATORY GOVERNANCE (CPAG); ENVIRONMENTAL LEGAL
ASSISTANCE CENTER, INC. (ELAC); FELLOWSHIP FOR ORGANIZING ENDEAVORS
(FORGE); FOUNDATION FOR LOCAL AUTONOMY AND GOOD GOVERNNANCE, INC.
(FLAGG); INSTITUTE OF POLITICS AND GOVERNANCE (IPG); KAISAHAN PARA SA
KAUNLARAN NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN);
MANGGAGAGAWANG KABABAIHANG MITHI AY PAGLAYA (MAKALAYA); NAGA
CITY PEOPLE'S COUNCIL (NCPC); NGO-PO COUNCIL OF CAMARINES SUR FOR
COMMUNITY PARTICIPATION AND EMPOWERMENT, INC. (NPCCS); PAILIG
DEVELOPMENT FOUNDATION INC. (PDFI); PHILIPPINE ECUMENICAL ACTION FOR
COMMUNITY EMPOWERMENT FOUNDATION, INC. (PEACE FOUNDATION, INC.);
PHILIPPINE PARTNERSHIP FOR THE DEVELOPMENT OF HUMAN RESOURCES IN
RURAL AREAS (PHILDHRRA); PILIPINA, INC. (ANG KILUSAN NG KABABAIHANG
PILIPINO); SENTRO NG ALTERNATIBONG LINGAP PANLIGAL (SALIGAN); URBAN
LAND REFORM TASK FORCE (ULR-TF); ADELINO C. LAVADOR; PUNONG
BARANGAY ISABEL MENDEZ; PUNONG BARANGAY CAROLINA
ROMANOS, petitioners,
vs.
HON. RONALDO ZAMORA, in his capacity as Executive Secretary, HON. BENJAMIN
DIOKNO, in his capacity as Secretary, Department of Budget and Management, HON.
LEONOR MAGTOLIS-BRIONES, in her capacity as National Treasurer, and the
COMMISSION ON AUDIT, respondents.
DECISION
CARPIO MORALES, J.:
Pursuant to Section 22, Article VII of the Constitution 1 mandating the President to submit to
Congress a budget of expenditures within thirty days before the opening of every regular
session, then President Joseph Ejercito Estrada submitted the National Expenditures
Program for Fiscal Year 2000. In the said Program, the President proposed an Internal
Revenue Allotment (IRA) in the amount of ₱121,778,000,000 following the formula provided
for in Section 284 of the Local Government Code of 1992, viz:
SECTION 284. Allotment of Internal Revenue Taxes. - Local government units shall have a
share in the national internal revenue taxes based on the collection of the third fiscal year
preceding the current fiscal year as follows:
(a) On the first year of the effectivity of this Code, thirty percent (30%);
(b) On the second year, thirty-five percent (35%); and
(c) On the third year and thereafter, forty percent (40%).
x x x (Emphasis supplied)
On February 16, 2000, the President approved House Bill No. 8374 - a bill sponsored in the
Senate by then Senator John H. Osmeña who was the Chairman of the Committee on
Finance. This bill became Republic Act No. 8760, "AN ACT APPROPRIATING FUNDS
FOR THE OPERATION OF THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES FROM JANUARY ONE TO DECEMBER THIRTY-ONE, TWO THOUSAND,
AND FOR OTHER PURPOSES".
The act, otherwise known as the General Appropriations Act (GAA) for the Year 2000,
provides under the heading "ALLOCATIONS TO LOCAL GOVERNMENT UNITS" that the
IRA for local government units shall amount to ₱111,778,000,000:1avvphi1.zw+
Josef Elvin Campos
XXXVII. ALLOCATIONS TO LOCAL
GOVERNMENT UNITS
A. INTERNAL REVENUE ALLOTMENT
For apportionment of the shares of local government units in the internal revenue taxes in
accordance with the purpose indicated hereunder
………………………………………………………….……….. ₱111,778,000,000
New Appropriations, by Purpose
Current Operating Expenditures
Operatin
Capital
Maintenance Personal g
Outlay Total
and Other Services Expense
s
s
A. PURPOSE(S)
a. Internal
Revenue ₱111,778,000,00 ₱111,778,000,00
Allotment 0 0
xxx
TOTAL NEW
APPROPRIATION ₱111,778,000,00
………
S 0
In another part of the GAA, under the heading "UNPROGRAMMED FUND," it is provided
that an amount of ₱10,000,000,000 (₱10 Billion), apart from the ₱111,778,000,000
mentioned above, shall be used to fund the IRA, which amount shall be released only when
the original revenue targets submitted by the President to Congress can be realized based
on a quarterly assessment to be conducted by certain committees which the GAA specifies,
namely, the Development Budget Coordinating Committee, the Committee on Finance of
the Senate, and the Committee on Appropriations of the House of Representatives.
LIV. UNPROGRAMMED FUND

For fund requirements in accordance with the purposes indicated hereunder ……………
₱48,681,831,000
A. PURPOSE(S)
xxxx
6. Additional
Operational
Requirements
and Projects of
Agencies ₱14,788,764,000
xxxx
Special Provisions
1. Release of the Fund. The amounts herein appropriated shall be released only when the
revenue collections exceed the original revenue targets submitted by the President of the
Philippines to Congress pursuant to Section 22, Article VII of the Constitution or when the
corresponding funding or receipts for the purpose have been realized except in the special
cases covered by specific procedures in Special Provision Nos. 2, 3, 4, 5, 7, 8, 9, 13 and 14
herein: PROVIDED, That in cases of foreign-assisted projects, the existence of a perfected
loan agreement shall be sufficient compliance for the issuance of a Special Allotment
Release Order covering the loan proceeds: PROVIDED, FURTHER, That no amount of the
Unprogrammed Fund shall be funded out of the savings generated from programmed items
in this Act.
xxxx
4. Additional Operational Requirements and Projects of Agencies. The appropriations for
Purpose 6 - Additional Operational Requirements and Projects of Agencies herein indicated
shall be released only when the original revenue targets submitted by the President of the
Philippines to Congress pursuant to Section 22, Article VII of the Constitution can be
realized based on a quarterly assessment of the Development Budget Coordinating
Committee, the Committee on Finance of the Senate and the Committee on Appropriations
of the House of Representatives and shall be used to fund the following:
Josef Elvin Campos
xxxx
Internal Revenue Allotments
Maintenance and
Other Operating
Expenses ₱10,000,000,000
--------------------
total IRA
₱10,000,000,000
xxxx
Total ₱14,788,764,000
Thus, while the GAA appropriates ₱111,778,000,000 of IRA as Programmed Fund, it

appropriates a separate amount of ₱10 Billion of IRA under the classification
of Unprogrammed Fund, the latter amount to be released only upon the occurrence of the
condition stated in the GAA.
On August 22, 2000, a number of non-governmental organizations (NGOs) and people's

organizations, along with three barangay officials filed with this Court the petition at bar,
for Certiorari, Prohibition and Mandamus With Application for Temporary Restraining Order,
against respondents then Executive Secretary Ronaldo Zamora, then Secretary of the
Department of Budget and Management Benjamin Diokno, then National Treasurer Leonor
Magtolis-Briones, and the Commission on Audit, challenging the constitutionality of above-
quoted provision of XXXVII (ALLOCATIONS TO LOCAL GOVERNMENT UNITS) referred
to by petitioners as Section 1, XXXVII (A), and LIV (UNPROGRAMMED FUND) Special
Provisions 1 and 4 of the GAA (the GAA provisions).
Petitioners contend that:
1. SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, OF THE YEAR
2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THEY VIOLATE
THE AUTONOMY OF LOCAL GOVERNMENTS BY UNLAWFULLY REDUCING BY TEN
BILLION PESOS (₱10 BILLION) THE INTERNAL REVENUE ALLOTMENTS DUE TO THE
LOCAL GOVERNMENTS AND WITHHOLDING THE RELEASE OF SUCH AMOUNT BY
PLACING THE SAME UNDER "UNPROGRAMMED FUNDS." THIS VIOLATES THE
CONSTITUTIONAL MANDATE IN ART. X, SEC. 6, THAT THE LOCAL GOVERNMENT
UNITS' JUST SHARE IN THE NATIONAL TAXES SHALL BE AUTOMATICALLY
RELEASED TO THEM. IT ALSO VIOLATES THE LOCAL GOVERNMENT CODE,
SPECIFICALLY, SECS. 18, 284, AND 286.
2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THEY VIOLATE
THE AUTONOMY OF LOCAL GOVERNMENTS BY PLACING TEN BILLION PESOS (₱10
BILLION) OF THE INTERNAL REVENUE ALLOTMENTS DUE TO THE LOCAL
GOVERNMENTS, EFFECTIVELY AND PRACTICALLY, WITHIN THE CONTROL OF THE
CENTRAL AUTHORITIES.
2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THE PLACING
OF ₱10 BILLION PESOS OF THE IRA UNDER "UNPROGRAMMED FUNDS"
CONSTITUTES AN UNDUE DELEGATION OF LEGISLATIVE POWER TO THE
RESPONDENTS.
2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THE PLACING
OF ₱10 BILLION PESOS OF THE IRA UNDER "UNPROGRAMMED FUNDS"
CONSTITUTES AN AMENDMENT OF THE LOCAL GOVERNMENT CODE OF 1991,
WHICH CANNOT BE DONE IN A GENERAL APPROPRIATIONS ACT AND WHICH
PURPOSE WAS NOT REFLECTED IN THE TITLE OF THE YEAR 2000 GAA.
5. THE YEAR 2000 GAA'S REDUCTION OF THE IRA UNDERMINES THE FOUNDATION
OF OUR LOCAL GOVERNANCE SYSTEM WHICH IS ESSENTIAL TO THE EFFICIENT
OPERATION OF THE GOVERNMENT AND THE DEVELOPMENT OF THE NATION.
6. THE CONGRESS AND THE EXECUTIVE, IN PASSING AND APPROVING,
RESPECTIVELY, THE YEAR 2000 GAA, AND THE RESPONDENTS, IN IMPLEMENTING
THE SAID YEAR 2000 GAA, INSOFAR AS SECTION 1, XXXVII (A) AND LIV, SPECIAL
Josef Elvin Campos
PROVISIONS 1 AND 4, ARE CONCERNED, ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AS
THEY TRANSGRESSED THE CONSTITUTION AND THE LOCAL GOVERNMENT
CODE'S PROHIBITION ON ANY INVALID REDUCTION AND WITHHOLDING OF THE
LOCAL GOVERNMENTS' IRA. (Underscoring supplied)
After the parties had filed their respective memoranda, a "MOTION FOR
INTERVENTION/MOTION TO ADMIT ATTACHED PETITION FOR INTERVENTION" was
filed on October 22, 2001 by the Province of Batangas, represented by then Governor
Hermilando I. Mandanas.
On November 6, 2001, the Province of Nueva Ecija, represented by Governor Tomas N.

Joson III, likewise filed a "MOTION FOR LEAVE OF COURT TO INTERVENE AND FILE
PETITION-IN-INTERVENTION".
The motions for intervention, both of which adopted the arguments of the main
petition,2 were granted by this Court.3
Although the effectivity of the Year 2000 GAA has ceased, this Court shall nonetheless
proceed to resolve the issues raised in the present case, it being impressed with public
interest. The ruling of this Court in the case of The Province of Batangas v.
Romulo,4 wherein GAA provisions relating to the IRA were likewise challenged, is in point,
to wit:
Granting arguendo that, as contended by the respondents, the resolution of the case had

already been overtaken by supervening events as the IRA, including the LGSEF, for 1999,
2000 and 2001, had already been released and the government is now operating under a
new appropriations law, still, there is compelling reason for this Court to resolve the
substantive issue raised by the instant petition. Supervening events, whether intended or
accidental, cannot prevent the Court from rendering a decision if there is a grave violation of
the Constitution. Even in cases where supervening events had made the cases moot, the
Court did not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar and public.
Another reason justifying the resolution by this Court of the substantive issue now before it
is the rule that courts will decide a question otherwise moot and academic if it is "capable of
repetition, yet evading review." For the GAAs in the coming years may contain provisos
similar to those now being sought to be invalidated, and yet, the question may not be
decided before another GAA is enacted. It, thus, behooves this Court to make a categorical
ruling on the substantive issue now.5
Passing on the arguments of all parties, bearing in mind the dictum that "the court should
not form a rule of constitutional law broader than is required by the precise facts to which it
is applied,"6 this Court finds that only the following issues need to be resolved in the present
petition: (1) whether the petition contains proper verifications and certifications against
forum-shopping, (2) whether petitioners have the requisite standing to file this suit, and (3)
whether the questioned provisions violate the constitutional injunction that the just share of
local governments in the national taxes or the IRA shall be automatically released.
Sufficiency of Verification and Certification Against Forum-Shopping
Respondents assail as improperly executed petitioners' verifications and certifications

against forum-shopping as they merely state that the allegations of the Petition are "true of
our knowledge and belief" instead of "true and correct of our personal knowledge or based
on authentic records" as required under Rule 7, Section 4 of the Rules of Court. 7
Jurisprudence is on petitioners' side. In Decano v. Edu,8 this Court held:
Respondents finally raise a technical point referring to the allegedly defective verification of
the petition filed in the trial court, contending that the clause in the verification statement
"that I have read the contents of the said petition; and that [to] the best of my knowledge are
true and correct" is insufficient since under section 6 of Rule 7, it is required that the person
verifying must have read the pleading and that the allegations thereof are true of his own
Josef Elvin Campos
knowledge. We do not see any reason for rendering the said verification void. The
statement "to the best of my knowledge are true and correct" referring to the allegations in
the petition does not mean mere "knowledge, information and belief." It
constitutes substantial compliance with the requirement of section 6 of Rule 7, as held in
Madrigal vs. Rodas (80 Phil. 252.). At any rate, this petty technicality deserves scant
consideration where the question at issue is one purely of law and there is no need of
delving into the veracity of the allegations in the petition, which are not disputed at all by
respondents. As we have held time and again, imperfections of form and technicalities of
procedure are to be disregarded except where substantial rights would otherwise be
prejudiced. (Emphasis and underscoring supplied)
Respondents go on to claim that the same verifications were signed by persons who were
not authorized by the incorporated cause-oriented groups which they claim to represent,
hence, the Petition should be treated as an unsigned pleading.
Indeed, only duly authorized natural persons may execute verifications in behalf of juridical
entities such as petitioners NGOs and people's organizations. As this Court held in Santos
v. CA, "In fact, physical actions, e.g., signing and delivery of documents, may be performed
on behalf of the corporate entity only by specifically authorized individuals." 9
Nonetheless, the present petition cannot be treated as an unsigned pleading. For even if
the rule that representatives of corporate entities must present the requisite authorization
were to be strictly applied, there would remain among the multi-group-petitioners the
individuals who validly executed verifications in their own names, namely, petitioners
Adelino C. Lavador, Punong Barangay Isabel Mendez, and Punong Barangay Carolina
Romanos.
At all events, in light of the following ruling of this Court in Shipside Inc. v. CA:10
. . . in Loyola, Roadway, and Uy, the Court excused non-compliance with the requirement

as to the certificate of non-forum shopping. With more reason should we allow the instant
petition since petitioner herein did submit a certification on non-forum shopping , failing only
to show proof that the signatory was authorized to do so. That petitioner subsequently
submitted a secretary's certificate attesting that Balbin was authorized to file an action on
behalf of petitioner likewise mitigates this oversight.
It must also be kept in mind that while the requirement of the certificate of non-forum
shopping is mandatory, nonetheless the requirements must not be interpreted too literally
and thus defeat the objective of preventing the undesirable practice of forum-
shopping (Bernardo v. NLRC, 255 SCRA 108 [1996]). Lastly, technical rules of procedure
should be used to promote, not frustrate justice. While the swift unclogging of court dockets
is a laudable objective, the granting of substantial justice is an even more urgent ideal.
(Underscoring supplied),
a too literal interpretation must be avoided if it defeats the objective of preventing the
practice of forum shopping.
Standing
Respondents assail petitioners' standing in this controversy, proffering that it is the local
government units - each having a separate juridical entity - which stand to be injured.
The subsequent intervention of the provinces of Batangas and Nueva Ecija which have
adopted the arguments of petitioners has, however, made the question of standing
academic.11
Respondents, contending that petitioners have no cause of action against them as they
claim to have no responsibility with respect to the mandate of the GAA provisions, proffer
that the committees mentioned in the GAA provisions, namely, the Development Budget
Coordinating Committee, Committee on Finance of the Senate, and Committee on
Appropriations of the House of Representatives, should instead have been impleaded.
Respondents' position does not lie.
Josef Elvin Campos
The GAA provisions being challenged were not to be implemented solely by the committees
specifically mentioned therein, for they being in the nature of appropriations provisions, they
were also to be implemented by the executive branch, particularly the Department of
Budget and Management (DBM) and the National Treasurer. The task of the committees
related merely to the conduct of the quarterly assessment required in the provisions, and
not in the actual release of the IRA which is the duty of the executive. Since the present
controversy centers on the proper manner of releasing the IRA, the impleaded respondents
are the proper parties to this suit.
In fact in earlier petitions likewise involving the constitutionality of provisions of previous

general appropriations acts which this Court granted, the therein respondent officials were
the same as those in the present case, e.g., Guingona v. Carague12 and PHILCONSA v.
Enriquez.13
Constitutionality of the GAA Provisions
Article X, Section 6 of the Constitution provides:
SECTION 6. Local government units shall have a just share, as determined by law, in the
national taxes which shall be automatically released to them.
Petitioners argue that the GAA violated this constitutional mandate when it made the
release of IRA contingent on whether revenue collections could meet the revenue targets
originally submitted by the President, rather than making the release automatic.
Respondents counterargue that the above constitutional provision is addressed not to the

legislature but to the executive, hence, the same does not prevent the legislature from
imposing conditions upon the release of the IRA. They cite the exchange between
Commissioner (now Chief Justice) Davide and Commissioner Nolledo in the deliberations of
the Constitutional Commission on the above-quoted Sec. 6, Art. X of the Constitution, to wit:
THE PRESIDENT. How about the second sentence?

MR. DAVIDE. The second sentence would be a new section that would be Section 13. As
modified it will read as follows: "LOCAL GOVERNMENT UNITS SHALL HAVE A JUST
SHARE, AS DETERMINED BY LAW, in the national taxes WHICH SHALL BE automatically
PERIODICALLY released to them."
MR. NOLLEDO. That will be Section 12, subsection (1) in the amendment.
MR. DAVIDE. No, we will just delete that because the second would be another section so
Section 12 would only be this: "LOCAL GOVERNMENT UNITS SHALL HAVE A JUST
SHARE, AS DETERMINED BY LAW, in the national taxes WHICH SHALL BE automatically
PERIODICALLY released to them."
MR. NOLLEDO. But the word "PERIODICALLY" may mean possibly withholding the
automatic release to them by adopting certain periods of automatic release. If we use the
word "automatically" without "PERIODICALLY," the latter may be already contemplated by
"automatically." So, the Committee objects to the word "PERIODICALLY."
MR. DAVIDE. If we do not say PERIODICALLY, it might be very, very difficult to comply
with it because these are taxes collected and actually released by the national
government every quarter. It is not that upon collection a portion should immediately be
released. It is quarterly. Otherwise, the national government will have to remit everyday
and that would be very expensive.
MR. NOLLEDO. That is not hindered by the word "automatically." But if we put
"automatically" and "PERIODICALLY" at the same time, that means certain periods have to
be observed as will be set forth by the Budget Officer thereby negating the meaning of
"automatically."
MR. DAVIDE. On the other hand, if we do not state PERIODICALLY, it may be done every
semester; it may be done at the end of the year. It is still automatic release.
MR. NOLLEDO. As far as the Committee is concerned, we vigorously object to the word
"PERIODICALLY."
MR. DAVIDE. Only the word PERIODICALLY?
MR. NOLLEDO. If the Commissioner is amenable to deleting that, we will accept the
amendment.
MR. DAVIDE. I will agree to the deletion of the word PERIODICALLY.
MR. NOLLEDO. Thank you.
Josef Elvin Campos
The Committee accepts the amendment. (Emphasis supplied) 14
In the above exchange of statements, it is clear that although Commissioners Davide and
Nolledo held different views with regard to the proper wording of the constitutional provision,
they shared a common assumption that the entity which would execute the automatic
release of internal revenue was the executive department.
Commissioner Davide referred to the national government as the entity that collects and
remits internal revenue. Similarly, Commissioner Nolledo alluded to the Budget Officer, who
is clearly under the executive branch.
Respondents thus infer that the subject constitutional provision merely prevents the
executive branch of the government from "unilaterally" withholding the IRA, but not the
legislature from authorizing the executive branch to withhold the same. In the words of
respondents, "This essentially means that the President or any member of the Executive
Department cannot unilaterally, i.e., without the backing of statute, withhold the release
of the IRA."15
Respondents' position does not lie.
As the Constitution lays upon the executive the duty to automatically release the just share
of local governments in the national taxes, so it enjoins the legislature not to pass laws that
might prevent the executive from performing this duty. To hold that the executive branch
may disregard constitutional provisions which define its duties, provided it has the backing
of statute, is virtually to make the Constitution amendable by statute - a proposition which is
patently absurd.
Moreover, there is merit in the argument of the intervenor Province of Batangas that, if
indeed the framers intended to allow the enactment of statutes making the release of IRA
conditional instead of automatic, then Article X, Section 6 of the Constitution would have
been worded differently. Instead of reading "Local government units shall have a just
share, as determined by law, in the national taxes which shall be automatically released to
them" (italics supplied), it would have read as follows, so the Province of Batangas posits:
"Local government units shall have a just share, as determined by law, in the national taxes
which shall be [automatically] released to them as provided by law," or,
"Local government units shall have a just share in the national taxes which shall be
[automatically] released to them as provided by law," or
"Local government units shall have a just share, as determined by law, in the national taxes
which shall be automatically released to them subject to exceptions Congress may
provide."16 (Italics supplied)
Since, under Article X, Section 6 of the Constitution, only the just share of local
governments is qualified by the words "as determined by law," and not the release thereof,
the plain implication is that Congress is not authorized by the Constitution to hinder or
impede the automatic release of the IRA.
Indeed, that Article X, Section 6 of the Constitution did bind the legislative just as much as
the executive branch was presumed in the ruling of this Court in the case of The Province
of Batangas v. Romulo17 which is analogous in many respects to the one at bar.
In Batangas, the petitioner therein challenged the constitutionality of certain provisos of the
GAAs for FY 1999, 2000, and 2001 which set up the Local Government Service
Equalization Fund (LGSEF). The LGSEF was a portion of the IRA which was to be released
only upon a finding of the Oversight Committee on Devolution that the LGU concerned had
complied with the guidelines issued by said committee. This Court measured the challenged
legislative acts against Article X, Section 6 and declared them unconstitutional - a ruling
which presupposes that the legislature, like the executive, is mandated by said
constitutional provision to ensure that the just share of local governments in the national
taxes are automatically released.
Josef Elvin Campos
Respondents, in further support of their claim that the automatic release requirement in the
Constitution constrains only the executive branch and not the legislature, cite three statutory
provisions whereby the legislature authorized the executive branch to withhold the IRA in
certain circumstances, namely, Section 70 of the Philippine National Police Reform and
Reorganization Act of 1998,18 Section 531(e) of the Local Government Code, 19 and Section
10 of Republic Act 7924 (1995). 20 Towards the same end, respondents also cite Rule XXXII,
Article 383(c) of the Rules and Regulations Implementing the Local Government Code. 21
While statutes and implementing rules are entitled to great weight in constitutional
construction as indicators of contemporaneous interpretation, such interpretation is not
necessarily binding or conclusive on the courts. In Tañada v. Cuenco, the Court held:
As a consequence, "where the meaning of a constitutional provision is clear, a

contemporaneous or practical . . . executive interpretation thereof is entitled to no weight
and will not be allowed to distort or in any way change its natural meaning." The reason is
that "the application of the doctrine of contemporaneous construction is more restricted as
applied to the interpretation of constitutional provisions than when applied to statutory
provisions," and that "except as to matters committed by the constitution itself to the
discretion of some other department, contemporaneous or practical construction is not
necessarily binding upon the courts, even in a doubtful case." Hence, "if in the judgment of
the court, such construction is erroneous and its further application is not made imperative
by any paramount considerations of public policy, it may be rejected." (Emphasis and
underscoring supplied, citations omitted)22
The validity of the legislative acts assailed in the present case should, therefore, be
assessed in light of Article X, Section 6 of the Constitution.
Again, in Batangas,23 this Court interpreted the subject constitutional provision as follows:

When parsed, it would be readily seen that this provision mandates that (1) the LGUs shall
have a "just share" in the national taxes; (2) the "just share" shall be determined by law; and
(3) the "just share" shall be automatically released to the LGUs.
xxx
Webster's Third New International Dictionary defines "automatic" as "involuntary either
wholly or to a major extent so that any activity of the will is largely negligible; of a reflex
nature; without volition; mechanical; like or suggestive of an automaton." Further, the word
"automatically" is defined as "in an automatic manner: without thought or conscious
intention." Being "automatic," thus, connotes something mechanical, spontaneous and
perfunctory. x x x" (Emphasis and underscoring supplied)24
Further on, the Court held:
To the Court's mind, the entire process involving the distribution and release of the LGSEF
is constitutionally impermissible. The LGSEF is part of the IRA or "just share" of the LGUs in
the national taxes. To subject its distribution and release to the vagaries of the
implementing rules and regulations, including the guidelines and mechanisms unilaterally
prescribed by the Oversight Committee from time to time, as sanctioned by the assailed
provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions, makes the
release not automatic, a flagrant violation of the constitutional and statutory mandate that
the "just share" of the LGUs "shall be automatically released to them." The LGUs are, thus,
placed at the mercy of the Oversight Committee.
Where the law, the Constitution in this case, is clear and unambiguous, it must be taken to
mean exactly what it says, and courts have no choice but to see to it that the mandate is
obeyed. Moreover, as correctly posited by the petitioner, the use of the word "shall"
connotes a mandatory order. Its use in a statute denotes an imperative obligation and is
inconsistent with the idea of discretion. x x x (Emphasis and underscoring supplied) 25
While "automatic release" implies that the just share of the local governments determined
by law should be released to them as a matter of course, the GAA provisions, on the other
hand, withhold its release pending an event which is not even certain of occurring. To rule
that the term "automatic release" contemplates such conditional release would be to strip
the term "automatic" of all meaning.
Josef Elvin Campos
Additionally, to interpret the term automatic release in such a broad manner would be
inconsistent with the ruling in Pimentel v. Aguirre.26 In the said case, the executive withheld
the release of the IRA pending an assessment very similar to the one provided in the GAA.
This Court ruled that such withholding contravened the constitutional mandate of an
automatic release, viz:
the automatic release of the shares of LGUs in the national internal revenue . This is
mandated by no less than the Constitution. The Local Government Code specifies further
the national government for whatever purpose." As a rule, the term "shall" is a word of
command that must be given a compulsory meaning. The provision is, therefore,
imperative.
withholding clearly contravenes the Constitution and the law. x x x27 (Italics in the original;
There is no substantial difference between the withholding of IRA involved in Pimentel and

that in the present case, except that here it is the legislature, not the executive, which has
authorized the withholding of the IRA. The distinction notwithstanding, the ruling
in Pimentel remains applicable. As explained above, Article X, Section 6 of the Constitution
- the same provision relied upon in Pimentel - enjoins both the legislative and executive
branches of government. Hence, as in Pimentel, under the same constitutional provision,
the legislative is barred from withholding the release of the IRA.
It bears stressing, however, that in light of the proviso in Section 284 of the Local
Government Code which reads:
Provided, That in the event that the national government incurs an unmanageable public
sector deficit, the President of the Philippines is hereby authorized, upon the
recommendation of Secretary of Finance, Secretary of Interior and Local Government and
Secretary of Budget and Management, and subject to consultation with the presiding
officers of both Houses of Congress and the presidents of the "liga," to make the necessary
adjustments in the internal revenue allotment of local government units but in no case shall
the allotment be less than thirty percent (30%) of the collection of national internal revenue
taxes of the third fiscal year preceding the current fiscal year: Provided, further, That in the
first year of the effectivity of this Code, the local government units shall, in addition to the
thirty percent (30%) internal revenue allotment which shall include the cost of devolved
functions for essential public services, be entitled to receive the amount equivalent to the
cost of devolved personal services. (Underscoring supplied),the only possible exception to
mandatory automatic release of the IRA is, as held in Batangas:
…if the national internal revenue collections for the current fiscal year is less than 40
percent of the collections of the preceding third fiscal year, in which case what should be
automatically released shall be a proportionate amount of the collections for the current
fiscal year. The adjustment may even be made on a quarterly basis depending on the actual
collections of national internal revenue taxes for the quarter of the current fiscal year. x x x 28
A final word. This Court recognizes that the passage of the GAA provisions by Congress
was motivated by the laudable intent to "lower the budget deficit in line with prudent fiscal
management."29 The pronouncement in Pimentel, however, must be echoed: "[T]he rule of
law requires that even the best intentions must be carried out within the parameters of the
Constitution and the law. Verily, laudable purposes must be carried out by legal methods." 30
WHEREFORE, the petition is GRANTED. XXXVII and LIV Special Provisions 1 and 4 of the
Year 2000 GAA are hereby declared unconstitutional insofar as they set apart a portion of
the IRA, in the amount of ₱10 Billion, as part of the UNPROGRAMMED FUND.
SO ORDERED.
Josef Elvin Campos
Davide, Jr., C.J., Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ.,
concur.
Puno, J., on official leave.
Kida v. Senate of the Philippines (G.R. No. 196271, 18 October 2011;

Resolution dated 28 February 2012)
G.R. No. 196271 February 28, 2012
DATU MICHAEL ABAS KIDA, in his personal capacity, and in representation of
MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC.,
HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN
TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE
ABDIL, and BASSAM ALUH SAUPI, Petitioners,
vs.
SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE,
HOUSE OF REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE,
COMMISSION ON ELECTIONS, thru its Chairman, SIXTO BRILLANTES, JR., PAQUITO
OCHOA, JR., Office of the President Executive Secretary, FLORENCIO ABAD, JR.,
Secretary of Budget, and ROBERTO TAN, Treasurer of the Philippines, Respondents.
x-----------------------x
G.R. No. 196305
BASARI D. MAPUPUNO, Petitioner,
vs.
SIXTO BRILLANTES, in his capacity as Chairman of the Commission on Elections,
FLORENCIO ABAD, JR. in his capacity as Secretary of the Department of Budget and
Management, PAQUITO OCHOA, JR., in his capacity as Executive Secretary, JUAN
PONCE ENRILE, in his capacity as Senate President, and FELICIANO BELMONTE, in
his capacity as Speaker of the House of Representatives, Respondents.
x-----------------------x
G.R. No. 197221
REP. EDCEL C. LAGMAN, Petitioner,
vs.
PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and the
COMMISSION ON ELECTIONS, Respondents.
x-----------------------x
G.R. No. 197280
ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and PARTIDO
DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-LABAN), Petitioners,
vs.
THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR.,
HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON.
FLORENCIO B. ABAD, JR., in his capacity as Secretary of the Department of Budget
and Management, and HON. ROBERTO B. TAN, in his capacity as Treasurer of the
Philippines, Respondents.
x-----------------------x
G.R. No. 197282
ATTY. ROMULO B. MACALINTAL, Petitioner,
vs.
COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT, through
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.
x-----------------------x
G.R. No. 197392
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY PAQUITO N.
OCHOA, JR., Respondents.
x-----------------------x
G.R. No. 197454
JACINTO V. PARAS, Petitioner,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and THE COMMISSION ON
ELECTIONS, Respondents.
Josef Elvin Campos
MINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents-Intervenor.
RESOLUTION
BRION, J.:
We resolve: (a) the motion for reconsideration filed by petitioners Datu Michael Abas Kida,
et al. in G.R. No. 196271; (b) the motion for reconsideration filed by petitioner Rep. Edcel
Lagman in G.R. No. 197221; (c) the ex abundante ad cautelam motion for reconsideration
filed by petitioner Basari Mapupuno in G.R. No. 196305; (d) the motion for reconsideration
filed by petitioner Atty. Romulo Macalintal in G.R. No. 197282; (e) the motion for
reconsideration filed by petitioners Almarim Centi Tillah, Datu Casan Conding Cana and
Partido Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the manifestation and
motion filed by petitioners Almarim Centi Tillah, et al. in G.R. No. 197280; and (g) the very
urgent motion to issue clarificatory resolution that the temporary restraining order (TRO) is
still existing and effective.
These motions assail our Decision dated October 18, 2011, where we upheld the
constitutionality of Republic Act (RA) No. 10153. Pursuant to the constitutional mandate of
synchronization, RA No. 10153 postponed the regional elections in the Autonomous Region
in Muslim Mindanao (ARMM) (which were scheduled to be held on the second Monday of
August 2011) to the second Monday of May 2013 and recognized the President’s power to
appoint officers-in-charge (OICs) to temporarily assume these positions upon the expiration
of the terms of the elected officials.
The Motions for Reconsideration

The petitioners in G.R. No. 196271 raise the following grounds in support of their motion:
I. THE HONORABLE COURT ERRED IN CONCLUDING THAT THE ARMM
ELECTIONS ARE LOCAL ELECTIONS, CONSIDERING THAT THE
CONSTITUTION GIVES THE ARMM A SPECIAL STATUS AND IS SEPARATE
AND DISTINCT FROM ORDINARY LOCAL GOVERNMENT UNITS.
II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.
III. THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A. 9054) ARE
NOT IRREPEALABLE LAWS.
IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE SECTION 18,
ARTICLE X OF THE CONSTITUTION.
V. BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC
PRINCIPLE[.]1
The petitioner in G.R. No. 197221 raises similar grounds, arguing that:
I. THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE OFFICIALS OF
ARMM CANNOT BE CONSIDERED AS OR EQUATED WITH THE TRADITIONAL
LOCAL GOVERNMENT OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs)
BECAUSE (A) THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION ON SUCH
PARITY; AND (B) THE ARMM IS MORE SUPERIOR THAN LGUs IN STRUCTURE,
POWERS AND AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS OWN
APART FROM TRADITIONAL LGUs.
II. THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL MANDATE
FOR AN ELECTIVE AND REPRESENTATIVE EXECUTIVE DEPARTMENT AND
LEGISLATIVE ASSEMBLY IN ARMM INDUBITABLY PRECLUDES THE
APPOINTMENT BY THE PRESIDENT OF OFFICERS-IN-CHARGE (OICs), ALBEIT
MOMENTARY OR TEMPORARY, FOR THE POSITIONS OF ARMM GOVERNOR,
VICE GOVERNOR AND MEMBERS OF THE REGIONAL ASSEMBLY.
III. THE PRESIDENT’S APPOINTING POWER IS LIMITED TO APPOINTIVE
OFFICIALS AND DOES NOT EXTEND TO ELECTIVE OFFICIALS EVEN AS THE
PRESIDENT IS ONLY VESTED WITH SUPERVISORY POWERS OVER THE
ARMM, THEREBY NEGATING THE AWESOME POWER TO APPOINT AND
REMOVE OICs OCCUPYING ELECTIVE POSITIONS.
IV. THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER OF ARMM
ELECTED OFFICIALS PENDING THE ELECTION AND QUALIFICATION OF
THEIR SUCCESSORS.
V. THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED OFFICIALS
WHOSE TERMS OF OFFICE ARE NOT PROVIDED FOR BY THE CONSTITUTION
BUT PRESCRIBED BY THE ORGANIC ACTS.
VI. THE REQUIREMENT OF A SUPERMAJORITY OF ¾ VOTES IN THE HOUSE
OF REPRESENTATIVES AND THE SENATE FOR THE VALIDITY OF A
Josef Elvin Campos
SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES
NOT IMPOSE AN IRREPEALABLE LAW.
VII. THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY OF A
SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES
NOT UNDULY EXPAND THE PLEBISCITE REQUIREMENT OF THE
CONSTITUTION.
VIII. SYNCHRONIZATION OF THE ARMM ELECTION WITH THE NATIONAL AND
LOCAL ELECTIONS IS NOT MANDATED BY THE CONSTITUTION.
IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT SPECIAL
ELECTIONS IN ARMM, AND THE ENACTMENT OF AN IMPROVIDENT AND
UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS CAUSE WARRANTING
COMELEC’S HOLDING OF SPECIAL ELECTIONS.2 (italics supplied)
The petitioner in G.R. No. 196305 further asserts that:
I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET A STATUTE, IT IS A
CONDITION SINE QUA NON THAT THERE BE DOUBT OR AMBIGUITY IN ITS
LANGUAGE.
THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND UNAMBIGUOUS:
THEY REFER TO THE 1992 ELECTIONS AND TURN-OVER OF ELECTIVE
OFFICIALS.
IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE FRAMERS, AND
APPLYING THE SAME TO ELECTIONS 20 YEARS AFTER, THE HONORABLE
SUPREME COURT MAY HAVE VIOLATED THE FOREMOST RULE IN
STATUTORY CONSTRUCTION.
xxxx
II. THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT RA 9054, AN
ORGANIC ACT, WAS COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE
CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO AMEND RA 9054.
xxxx
III. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN
DECLARING THE 2/3 VOTING REQUIREMENT SET FORTH IN RA 9054 AS
UNCONSTITUTIONAL.
xxxx
IV. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN
HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN AMENDING THE
ORGANIC ACT.
xxxx
V. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN DECLARING
THE HOLD-OVER OF ARMM ELECTIVE OFFICIALS UNCONSTITUTIONAL.
xxxx
VI. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN UPHOLDING
THE APPOINTMENT OF OFFICERS-IN-CHARGE.3 (italics and underscoring
supplied)
The petitioner in G.R. No. 197282 contends that:
A.
ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs FOR
THE REGIONAL GOVERNMENT OF THE ARMM IS NOT UNCONSTITUTIONAL
TO BEGIN WITH, SUCH APPOINTMENT OF OIC REGIONAL OFFICIALS WILL
CREATE A FUNDAMENTAL CHANGE IN THE BASIC STRUCTURE OF THE
REGIONAL GOVERNMENT SUCH THAT R.A. NO. 10153 SHOULD HAVE BEEN
SUBMITTED TO A PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS PEOPLE,
WHICH PLEBISCITE REQUIREMENT CANNOT BE CIRCUMVENTED BY SIMPLY
CHARACTERIZING THE PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT
OF OICs AS AN "INTERIM MEASURE".
B.
THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT BY
THE PRESIDENT OF OICs FOR THE ARMM REGIONAL GOVERNMENT IS NOT
VIOLATIVE OF THE CONSTITUTION.
C.
THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT VIOLATE
THE CONSTITUTION, AND BEFORE THEIR SUCCESSORS ARE ELECTED IN
EITHER AN ELECTION TO BE HELD AT THE SOONEST POSSIBLE TIME OR IN
MAY 2013, THE SAID INCUMBENT ARMM REGIONAL OFFICIALS MAY VALIDLY
Josef Elvin Campos
CONTINUE FUNCTIONING AS SUCH IN A HOLDOVER CAPACITY IN
ACCORDANCE WITH SECTION 7, ARTICLE VII OF R.A. NO. 9054.
D.
WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS,
SPECIAL ELECTIONS MUST IMMEDIATELY BE HELD FOR THE ELECTIVE
REGIONAL OFFICIALS OF THE ARMM WHO SHALL SERVE UNTIL THEIR
SUCCESSORS ARE ELECTED IN THE MAY 2013 SYNCHRONIZED ELECTIONS.4
Finally, the petitioners in G.R. No. 197280 argue that:
a) the Constitutional mandate of synchronization does not apply to the ARMM
elections;
b) RA No. 10153 negates the basic principle of republican democracy which, by
constitutional mandate, guides the governance of the Republic;
c) RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has to comply
with the 2/3 vote from the House of Representatives and the Senate, voting
separately, and be ratified in a plebiscite;
d) if the choice is between elective officials continuing to hold their offices even after
their terms are over and non-elective individuals getting into the vacant elective
positions by appointment as OICs, the holdover option is the better choice;
e) the President only has the power of supervision over autonomous regions, which
does not include the power to appoint OICs to take the place of ARMM elective
officials; and
f) it would be better to hold the ARMM elections separately from the national and
local elections as this will make it easier for the authorities to implement election
laws.
In essence, the Court is asked to resolve the following questions:
(a) Does the Constitution mandate the synchronization of ARMM regional elections
with national and local elections?
(b) Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153 have to
comply with the supermajority vote and plebiscite requirements?
(c) Is the holdover provision in RA No. 9054 constitutional?
(d) Does the COMELEC have the power to call for special elections in ARMM?
(e) Does granting the President the power to appoint OICs violate the elective and
representative nature of ARMM regional legislative and executive offices?
(f) Does the appointment power granted to the President exceed the President’s
supervisory powers over autonomous regions?
The Court’s Ruling

We deny the motions for lack of merit.
Synchronization mandate includes ARMM elections
The Court was unanimous in holding that the Constitution mandates the synchronization of
national and local elections. While the Constitution does not expressly instruct Congress to
synchronize the national and local elections, the intention can be inferred from the following
provisions of the Transitory Provisions (Article XVIII) of the Constitution, which state:
Section 1. The first elections of Members of the Congress under this Constitution shall be
held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the President, which
may be simultaneous with the election of the Members of the Congress. It shall include the
election of all Members of the city or municipal councils in the Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives, and the local officials
first elected under this Constitution shall serve until noon of June 30, 1992.
Of the Senators elected in the elections in 1992, the first twelve obtaining the highest
number of votes shall serve for six years and the remaining twelve for three years.
xxxx
Section 5. The six-year term of the incumbent President and Vice-President elected in the
February 7, 1986 election is, for purposes of synchronization of elections, hereby extended
to noon of June 30, 1992.
Josef Elvin Campos
The first regular elections for the President and Vice-President under this Constitution shall
be held on the second Monday of May, 1992.
To fully appreciate the constitutional intent behind these provisions, we refer to the
discussions of the Constitutional Commission:
MR. MAAMBONG. For purposes of identification, I will now read a section which we will
temporarily indicate as Section 14. It reads: "THE SENATORS, MEMBERS OF THE
HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST
ELECTION SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992."
This was presented by Commissioner Davide, so may we ask that Commissioner Davide be
recognized.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.
MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of
the action taken by the Commission on Section 2 earlier, I am formulating a new proposal. It
will read as follows: "THE SENATORS, MEMBERS OF THE HOUSE OF
REPRESENTATIVES AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS
CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992."
I proposed this because of the proposed section of the Article on Transitory Provisions
giving a term to the incumbent President and Vice-President until 1992. Necessarily then,
since the term provided by the Commission for Members of the Lower House and for local
officials is three years, if there will be an election in 1987, the next election for said officers
will be in 1990, and it would be very close to 1992. We could never attain, subsequently,
any synchronization of election which is once every three years.
So under my proposal we will be able to begin actual synchronization in 1992, and

consequently, we should not have a local election or an election for Members of the Lower
House in 1990 for them to be able to complete their term of three years each. And if we also
stagger the Senate, upon the first election it will result in an election in 1993 for the Senate
alone, and there will be an election for 12 Senators in 1990. But for the remaining 12 who
will be elected in 1987, if their term is for six years, their election will be in 1993. So,
consequently we will have elections in 1990, in 1992 and in 1993. The later election will be
limited to only 12 Senators and of course to the local officials and the Members of the Lower
House. But, definitely, thereafter we can never have an election once every three years,
therefore defeating the very purpose of the Commission when we adopted the term of six
years for the President and another six years for the Senators with the possibility of
staggering with 12 to serve for six years and 12 for three years insofar as the first Senators
are concerned. And so my proposal is the only way to effect the first synchronized
election which would mean, necessarily, a bonus of two years to the Members of the
Lower House and a bonus of two years to the local elective officials.
THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?
MR. DE CASTRO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.
MR. DE CASTRO. Thank you.
During the discussion on the legislative and the synchronization of elections, I was the one
who proposed that in order to synchronize the elections every three years, which the body
approved — the first national and local officials to be elected in 1987 shall continue in office
for five years, the same thing the Honorable Davide is now proposing. That means they will
all serve until 1992, assuming that the term of the President will be for six years and
continue beginning in 1986. So from 1992, we will again have national, local and
presidential elections. This time, in 1992, the President shall have a term until 1998 and
the first 12 Senators will serve until 1998, while the next 12 shall serve until 1995, and
then the local officials elected in 1992 will serve until 1995. From then on, we shall
have an election every three years.
So, I will say that the proposition of Commissioner Davide is in order, if we have to
synchronize our elections every three years which was already approved by the body.
Thank you, Mr. Presiding Officer.
xxxx
MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent
President and Vice-President in 1992.
MR. DAVIDE. Yes.
Josef Elvin Campos
MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the
Senators and local officials with the election of the President?
MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the
assumption that the provision of the Transitory Provisions on the term of the incumbent
President and Vice-President would really end in 1992.
MR. GUINGONA. Yes.
MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the
President up to the municipal officials.5 (emphases and underscoring ours)
The framers of the Constitution could not have expressed their objective more clearly –
there was to be a single election in 1992 for all elective officials – from the President down
to the municipal officials. Significantly, the framers were even willing to temporarily lengthen
or shorten the terms of elective officials in order to meet this objective, highlighting the
importance of this constitutional mandate.
We came to the same conclusion in Osmeña v. Commission on Elections, 6 where we

unequivocally stated that "the Constitution has mandated synchronized national and local
elections."7 Despite the length and verbosity of their motions, the petitioners have failed to
convince us to deviate from this established ruling.
Neither do we find any merit in the petitioners’ contention that the ARMM elections are not
covered by the constitutional mandate of synchronization because the ARMM elections
were not specifically mentioned in the above-quoted Transitory Provisions of the
Constitution.
That the ARMM elections were not expressly mentioned in the Transitory Provisions of the
Constitution on synchronization cannot be interpreted to mean that the ARMM elections are
not covered by the constitutional mandate of synchronization. We have to consider that the
ARMM, as we now know it, had not yet been officially organized at the time the Constitution
was enacted and ratified by the people. Keeping in mind that a constitution is not intended
to provide merely for the exigencies of a few years but is to endure through generations for
as long as it remains unaltered by the people as ultimate sovereign, a constitution should be
construed in the light of what actually is a continuing instrument to govern not only the
present but also the unfolding events of the indefinite future. Although the principles
embodied in a constitution remain fixed and unchanged from the time of its adoption, a
constitution must be construed as a dynamic process intended to stand for a great length of
time, to be progressive and not static.8
To reiterate, Article X of the Constitution, entitled "Local Government," clearly shows the
intention of the Constitution to classify autonomous regions, such as the ARMM, as local
governments. We refer to Section 1 of this Article, which provides:
Section 1. The territorial and political subdivisions of the Republic of the Philippines are the
provinces, cities, municipalities, and barangays. There shall be autonomous regions in
Muslim Mindanao and the Cordilleras as hereinafter provided.
The inclusion of autonomous regions in the enumeration of political subdivisions of the

State under the heading "Local Government" indicates quite clearly the constitutional intent
to consider autonomous regions as one of the forms of local governments.
That the Constitution mentions only the "national government" and the "local governments,"
and does not make a distinction between the "local government" and the "regional
government," is particularly revealing, betraying as it does the intention of the framers of the
Constitution to consider the autonomous regions not as separate forms of government, but
as political units which, while having more powers and attributes than other local
government units, still remain under the category of local governments. Since autonomous
regions are classified as local governments, it follows that elections held in autonomous
regions are also considered as local elections.
The petitioners further argue that even assuming that the Constitution mandates the
synchronization of elections, the ARMM elections are not covered by this mandate since
they are regional elections and not local elections.
Josef Elvin Campos
In construing provisions of the Constitution, the first rule is verba legis, "that is, wherever
possible, the words used in the Constitution must be given their ordinary meaning except
where technical terms are employed."9 Applying this principle to determine the scope of
"local elections," we refer to the meaning of the word "local," as understood in its ordinary
sense. As defined in Webster’s Third New International Dictionary Unabridged, "local" refers
to something "that primarily serves the needs of a particular limited district, often a
community or minor political subdivision." Obviously, the ARMM elections, which are held
within the confines of the autonomous region of Muslim Mindanao, fall within this definition.
To be sure, the fact that the ARMM possesses more powers than other provinces, cities, or
municipalities is not enough reason to treat the ARMM regional elections differently from the
other local elections. Ubi lex non distinguit nec nos distinguire debemus. When the law does
not distinguish, we must not distinguish. 10
RA No. 10153 does not amend RA No. 9054
The petitioners are adamant that the provisions of RA No. 10153, in postponing the ARMM
elections, amend RA No. 9054.
We cannot agree with their position.
A thorough reading of RA No. 9054 reveals that it fixes the schedule for only
the first ARMM elections;11 it does not provide the date for the succeeding regular ARMM
elections. In providing for the date of the regular ARMM elections, RA No. 9333 and RA No.
10153 clearly do not amend RA No. 9054 since these laws do not change or revise any
provision in RA No. 9054. In fixing the date of the ARMM elections subsequent to the first
election, RA No. 9333 and RA No. 10153 merely filled the gap left in RA No. 9054.
We reiterate our previous observations:
This view – that Congress thought it best to leave the determination of the date of
succeeding ARMM elections to legislative discretion – finds support in ARMM’s recent
history.
To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections.
The First Organic Act – RA No. 6734 – not only did not fix the date of the subsequent
elections; it did not even fix the specific date of the first ARMM elections, leaving the date to
be fixed in another legislative enactment. Consequently, RA No. 7647, RA No. 8176, RA
No. 8746, RA No. 8753, and RA No. 9012 were all enacted by Congress to fix the dates of
the ARMM elections. Since these laws did not change or modify any part or provision of RA
No. 6734, they were not amendments to this latter law. Consequently, there was no need to
submit them to any plebiscite for ratification.
The Second Organic Act – RA No. 9054 – which lapsed into law on March 31, 2001,
provided that the first elections would be held on the second Monday of September 2001.
Thereafter, Congress passed RA No. 9140 to reset the date of the ARMM elections.
Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the
Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed
in RA No. 9140 was not among the provisions ratified in the plebiscite held to
approve RA No. 9054. Thereafter, Congress passed RA No. 9333, which further reset the
date of the ARMM regional elections. Again, this law was not ratified through a plebiscite.
From these legislative actions, we see the clear intention of Congress to treat the laws
which fix the date of the subsequent ARMM elections as separate and distinct from the
Organic Acts. Congress only acted consistently with this intent when it passed RA No.
10153 without requiring compliance with the amendment prerequisites embodied in Section
1 and Section 3, Article XVII of RA No. 9054.12 (emphases supplied)
The petitioner in G.R. No. 196305 contends, however, that there is no lacuna in RA No.
9054 as regards the date of the subsequent ARMM elections. In his estimation, it can be
implied from the provisions of RA No. 9054 that the succeeding elections are to be held
three years after the date of the first ARMM regional elections.
We find this an erroneous assertion. Well-settled is the rule that the court may not, in the
guise of interpretation, enlarge the scope of a statute and include therein situations not
provided nor intended by the lawmakers. An omission at the time of enactment, whether
careless or calculated, cannot be judicially supplied however later wisdom may recommend
Josef Elvin Campos
the inclusion.13 Courts are not authorized to insert into the law what they think should be in it
or to supply what they think the legislature would have supplied if its attention had been
called to the omission.14 Providing for lapses within the law falls within the exclusive domain
of the legislature, and courts, no matter how well-meaning, have no authority to intrude into
this clearly delineated space.
Since RA No. 10153 does not amend, but merely fills in the gap in RA No. 9054, there is no
need for RA No. 10153 to comply with the amendment requirements set forth in Article XVII
of RA No. 9054.
Supermajority vote requirement makes RA No. 9054 an irrepealable law
Even assuming that RA No. 10153 amends RA No. 9054, however, we have already
established that the supermajority vote requirement set forth in Section 1, Article XVII of RA
No. 905415 is unconstitutional for violating the principle that Congress cannot pass
irrepealable laws.
The power of the legislature to make laws includes the power to amend and repeal these
laws. Where the legislature, by its own act, attempts to limit its power to amend or repeal
laws, the Court has the duty to strike down such act for interfering with the plenary powers
of Congress. As we explained in Duarte v. Dade:16
A state legislature has a plenary law-making power over all subjects, whether pertaining to
persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the
old, unless prohibited expressly or by implication by the federal constitution or limited or
restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws
except when so restrained. Every legislative body may modify or abolish the acts passed by
itself or its predecessors. This power of repeal may be exercised at the same session at
which the original act was passed; and even while a bill is in its progress and before it
becomes a law. This legislature cannot bind a future legislature to a particular mode
of repeal. It cannot declare in advance the intent of subsequent legislatures or the
effect of subsequent legislation upon existing statutes. [emphasis ours]
Under our Constitution, each House of Congress has the power to approve bills by a mere
majority vote, provided there is quorum. 17 In requiring all laws which amend RA No. 9054 to
comply with a higher voting requirement than the Constitution provides (2/3 vote),
Congress, which enacted RA No. 9054, clearly violated the very principle which we sought
to establish in Duarte. To reiterate, the act of one legislature is not binding upon, and cannot
tie the hands of, future legislatures.18
We also highlight an important point raised by Justice Antonio T. Carpio in his dissenting
opinion, where he stated: "Section 1, Article XVII of RA 9054 erects a high vote threshold
for each House of Congress to surmount, effectively and unconstitutionally, taking RA 9054
beyond the reach of Congress’ amendatory powers. One Congress cannot limit or reduce
the plenary legislative power of succeeding Congresses by requiring a higher vote threshold
than what the Constitution requires to enact, amend or repeal laws. No law can be passed
fixing such a higher vote threshold because Congress has no power, by ordinary legislation,
to amend the Constitution."19
Plebiscite requirement in RA No. 9054 overly broad
Similarly, we struck down the petitioners’ contention that the plebiscite requirement 20 applies
to all amendments of RA No. 9054 for being an unreasonable enlargement of the plebiscite
requirement set forth in the Constitution.
Section 18, Article X of the Constitution provides that "[t]he creation of the autonomous
region shall be effective when approved by majority of the votes cast by the constituent
units in a plebiscite called for the purpose[.]" We interpreted this to mean that only
amendments to, or revisions of, the Organic Act constitutionally-essential to the creation
of autonomous regions – i.e., those aspects specifically mentioned in the Constitution which
Congress must provide for in the Organic Act 21 – require ratification through a plebiscite. We
stand by this interpretation.
Josef Elvin Campos
The petitioners argue that to require all amendments to RA No. 9054 to comply with the
plebiscite requirement is to recognize that sovereignty resides primarily in the people.
While we agree with the petitioners’ underlying premise that sovereignty ultimately resides
with the people, we disagree that this legal reality necessitates compliance with the
plebiscite requirement for all amendments to RA No. 9054. For if we were to go by the
petitioners’ interpretation of Section 18, Article X of the Constitution that all amendments to
the Organic Act have to undergo the plebiscite requirement before becoming effective, this
would lead to impractical and illogical results – hampering the ARMM’s progress by
impeding Congress from enacting laws that timely address problems as they arise in the
region, as well as weighing down the ARMM government with the costs that unavoidably
follow the holding of a plebiscite.
Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in giving the
President the power to appoint OICs to take the place of the elective officials of the ARMM,
creates a fundamental change in the basic structure of the government, and thus requires
compliance with the plebiscite requirement embodied in RA No. 9054.
Again, we disagree.
The pertinent provision in this regard is Section 3 of RA No. 10153, which reads:
Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-
charge for the Office of the Regional Governor, Regional Vice Governor and Members of
the Regional Legislative Assembly who shall perform the functions pertaining to the said
offices until the officials duly elected in the May 2013 elections shall have qualified and
assumed office.
We cannot see how the above-quoted provision has changed the basic structure of the
ARMM regional government. On the contrary, this provision clearly preserves the basic
structure of the ARMM regional government when it recognizes the offices of the ARMM
regional government and directs the OICs who shall temporarily assume these offices to
"perform the functions pertaining to the said offices."
Unconstitutionality of the holdover provision
The petitioners are one in defending the constitutionality of Section 7(1), Article VII of RA
No. 9054, which allows the regional officials to remain in their positions in a holdover
capacity. The petitioners essentially argue that the ARMM regional officials should be
allowed to remain in their respective positions until the May 2013 elections since there is no
specific provision in the Constitution which prohibits regional elective officials from
performing their duties in a holdover capacity.
The pertinent provision of the Constitution is Section 8, Article X which provides:

Section 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms. [emphases ours]
On the other hand, Section 7(1), Article VII of RA No. 9054 provides:
Section 7. Terms of Office of Elective Regional Officials. – (1) Terms of Office. The terms of
office of the Regional Governor, Regional Vice Governor and members of the Regional
Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th day
of September next following the day of the election and shall end at noon of the same date
three (3) years thereafter. The incumbent elective officials of the autonomous region shall
continue in effect until their successors are elected and qualified.
The clear wording of Section 8, Article X of the Constitution expresses the intent of the
framers of the Constitution to categorically set a limitation on the period within which all
elective local officials can occupy their offices. We have already established that elective
ARMM officials are also local officials; they are, thus, bound by the three-year term limit
prescribed by the Constitution. It, therefore, becomes irrelevant that the Constitution does
not expressly prohibit elective officials from acting in a holdover capacity. Short of amending
the Constitution, Congress has no authority to extend the three-year term limit by inserting a
holdover provision in RA No. 9054. Thus, the term of three years for local officials should
stay at three (3) years, as fixed by the Constitution, and cannot be extended by holdover by
Congress.
Josef Elvin Campos
Admittedly, we have, in the past, recognized the validity of holdover provisions in various
laws. One significant difference between the present case and these past cases 22 is that
while these past cases all refer to elective barangay or sangguniang kabataan officials
whose terms of office are not explicitly provided for in the Constitution, the present case
refers to local elective officials - the ARMM Governor, the ARMM Vice Governor, and the
members of the Regional Legislative Assembly - whose terms fall within the three-year term
limit set by Section 8, Article X of the Constitution.
Even assuming that a holdover is constitutionally permissible, and there had been statutory
basis for it (namely Section 7, Article VII of RA No. 9054), the rule of holdover can only
apply as an available option where no express or implied legislative intent to the contrary
exists; it cannot apply where such contrary intent is evident. 23
Congress, in passing RA No. 10153 and removing the holdover option, has made it clear
that it wants to suppress the holdover rule expressed in RA No. 9054. Congress, in the
exercise of its plenary legislative powers, has clearly acted within its discretion when it
deleted the holdover option, and this Court has no authority to question the wisdom of this
decision, absent any evidence of unconstitutionality or grave abuse of discretion. It is for the
legislature and the executive, and not this Court, to decide how to fill the vacancies in the
ARMM regional government which arise from the legislature complying with the
constitutional mandate of synchronization.
COMELEC has no authority to hold special elections
Neither do we find any merit in the contention that the Commission on Elections
(COMELEC) is sufficiently empowered to set the date of special elections in the ARMM. To
recall, the Constitution has merely empowered the COMELEC to enforce and administer all
laws and regulations relative to the conduct of an election. 24 Although the legislature, under
the Omnibus Election Code (Batas Pambansa Bilang [BP] 881), has granted the COMELEC
the power to postpone elections to another date, this power is confined to the specific terms
and circumstances provided for in the law. Specifically, this power falls within the narrow
confines of the following provisions:
Section 5. Postponement of election. - When for any serious cause such

as violence, terrorism, loss or destruction of election paraphernalia or records, force
majeure, and other analogous causes of such a nature that the holding of a free, orderly
and honest election should become impossible in any political subdivision, the
Commission, motu proprio or upon a verified petition by any interested party, and after due
notice and hearing, whereby all interested parties are afforded equal opportunity to be
heard, shall postpone the election therein to a date which should be reasonably close
to the date of the election not held, suspended or which resulted in a failure to
elect but not later than thirty days after the cessation of the cause for such postponement or
suspension of the election or failure to elect.
Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud,

or other analogous causes the election in any polling place has not been held on the
date fixed, or had been suspended before the hour fixed by law for the closing of the
voting, or after the voting and during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election results in a failure to elect,
and in any of such cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by any interested party
and after due notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date of
the election not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause of such postponement or suspension of the
election or failure to elect. [emphases and underscoring ours]
As we have previously observed in our assailed decision, both Section 5 and Section 6 of
BP 881 address instances where elections have already been scheduled to take place but
do not occur or had to be suspended because
of unexpected and unforeseen circumstances, such as violence, fraud, terrorism, and
other analogous circumstances.
Josef Elvin Campos
In contrast, the ARMM elections were postponed by law, in furtherance of the constitutional
mandate of synchronization of national and local elections. Obviously, this does not fall
under any of the circumstances contemplated by Section 5 or Section 6 of BP 881.
More importantly, RA No. 10153 has already fixed the date for the next ARMM elections
and the COMELEC has no authority to set a different election date.
Even assuming that the COMELEC has the authority to hold special elections, and this
Court can compel the COMELEC to do so, there is still the problem of having to shorten the
terms of the newly elected officials in order to synchronize the ARMM elections with the
May 2013 national and local elections. Obviously, neither the Court nor the COMELEC has
the authority to do this, amounting as it does to an amendment of Section 8, Article X of the
Constitution, which limits the term of local officials to three years.
President’s authority to appoint OICs
The petitioner in G.R. No. 197221 argues that the President’s power to appoint pertains
only to appointive positions and cannot extend to positions held by elective officials.
The power to appoint has traditionally been recognized as executive in nature. 25 Section 16,
Article VII of the Constitution describes in broad strokes the extent of this power, thus:
Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the appointment of other officers lower in rank in
the President alone, in the courts, or in the heads of departments, agencies, commissions,
or boards. [emphasis ours]
The 1935 Constitution contained a provision similar to the one quoted above. Section 10(3),
Article VII of the 1935 Constitution provides:
(3) The President shall nominate and with the consent of the Commission on Appointments,
shall appoint the heads of the executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and
all other officers of the Government whose appointments are not herein otherwise provided
for, and those whom he may be authorized by law to appoint; but the Congress may by law
vest the appointment of inferior officers, in the President alone, in the courts, or in the heads
of departments. [emphasis ours]
The main distinction between the provision in the 1987 Constitution and its counterpart in
the 1935 Constitution is the sentence construction; while in the 1935 Constitution, the
various appointments the President can make are enumerated in a single sentence, the
1987 Constitution enumerates the various appointments the President is empowered to
make and divides the enumeration in two sentences. The change in style is significant; in
providing for this change, the framers of the 1987 Constitution clearly sought to make a
distinction between the first group of presidential appointments and the second group of
presidential appointments, as made evident in the following exchange:
MR. FOZ. Madame President x x x I propose to put a period (.) after "captain" and x x x
delete "and all" and substitute it with HE SHALL ALSO APPOINT ANY.
MR. REGALADO. Madam President, the Committee accepts the proposed amendment
because it makes it clear that those other officers mentioned therein do not have to be
confirmed by the Commission on Appointments.26
The first group of presidential appointments, specified as the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers of the Armed
Forces, and other officers whose appointments are vested in the President by the
Constitution, pertains to the appointive officials who have to be confirmed by the
Commission on Appointments.
Josef Elvin Campos
The second group of officials the President can appoint are "all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint." 27 The second sentence acts as the "catch-all
provision" for the President’s appointment power, in recognition of the fact that the power to
appoint is essentially executive in nature. 28 The wide latitude given to the President to
appoint is further demonstrated by the recognition of the President’s power to appoint
officials whose appointments are not even provided for by law. In other words, where
there are offices which have to be filled, but the law does not provide the process for filling
them, the Constitution recognizes the power of the President to fill the office by
appointment.
Any limitation on or qualification to the exercise of the President’s appointment power

should be strictly construed and must be clearly stated in order to be recognized. 29 Given
that the President derives his power to appoint OICs in the ARMM regional government
from law, it falls under the classification of presidential appointments covered by the second
sentence of Section 16, Article VII of the Constitution; the President’s appointment power
thus rests on clear constitutional basis.
The petitioners also jointly assert that RA No. 10153, in granting the President the power to
appoint OICs in elective positions, violates Section 16, Article X of the Constitution, 30 which
merely grants the President the power of supervision over autonomous regions.
This is an overly restrictive interpretation of the President’s appointment power. There is no

incompatibility between the President’s power of supervision over local governments and
autonomous regions, and the power granted to the President, within the specific confines of
RA No. 10153, to appoint OICs.
The power of supervision is defined as "the power of a superior officer to see to it that lower
officers perform their functions in accordance with law." 31 This is distinguished from the
power of control or "the power of an officer to alter or modify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment of the
former for the latter."32
The petitioners’ apprehension regarding the President’s alleged power of control over the
OICs is rooted in their belief that the President’s appointment power includes the power to
remove these officials at will. In this way, the petitioners foresee that the appointed OICs will
be beholden to the President, and act as representatives of the President and not of the
people.
Section 3 of RA No. 10153 expressly contradicts the petitioners’ supposition. The provision
states:
Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-

charge for the Office of the Regional Governor, Regional Vice Governor and Members of
the Regional Legislative Assembly who shall perform the functions pertaining to the said
offices until the officials duly elected in the May 2013 elections shall have qualified and
assumed office.
The wording of the law is clear. Once the President has appointed the OICs for the offices
of the Governor, Vice Governor and members of the Regional Legislative Assembly, these
same officials will remain in office until they are replaced by the duly elected officials in the
May 2013 elections. Nothing in this provision even hints that the President has the power to
recall the appointments he already made. Clearly, the petitioners’ fears in this regard are
more apparent than real.
RA No. 10153 as an interim measure

We reiterate once more the importance of considering RA No. 10153 not in a vacuum, but
within the context it was enacted in. In the first place, Congress enacted RA No. 10153
primarily to heed the constitutional mandate to synchronize the ARMM regional elections
with the national and local elections. To do this, Congress had to postpone the scheduled
ARMM elections for another date, leaving it with the problem of how to provide the ARMM
with governance in the intervening period, between the expiration of the term of those
elected in August 2008 and the assumption to office – twenty-one (21) months away – of
those who will win in the synchronized elections on May 13, 2013.
Josef Elvin Campos
In our assailed Decision, we already identified the three possible solutions open to
Congress to address the problem created by synchronization – (a) allow the incumbent
officials to remain in office after the expiration of their terms in a holdover capacity; (b) call
for special elections to be held, and shorten the terms of those to be elected so the next
ARMM regional elections can be held on May 13, 2013; or (c) recognize that the President,
in the exercise of his appointment powers and in line with his power of supervision over the
ARMM, can appoint interim OICs to hold the vacated positions in the ARMM regional
government upon the expiration of their terms. We have already established the
unconstitutionality of the first two options, leaving us to consider the last available option.
In this way, RA No. 10153 is in reality an interim measure, enacted to respond to the
adjustment that synchronization requires. Given the context, we have to judge RA No.
10153 by the standard of reasonableness in responding to the challenges brought about by
synchronizing the ARMM elections with the national and local elections. In other words,
"given the plain unconstitutionality of providing for a holdover and the unavailability
of constitutional possibilities for lengthening or shortening the term of the elected
ARMM officials, is the choice of the President’s power to appoint – for a fixed and
specific period as an interim measure, and as allowed under Section 16, Article VII of
the Constitution – an unconstitutional or unreasonable choice for Congress to
make?"33
We admit that synchronization will temporarily disrupt the election process in a local
community, the ARMM, as well as the community’s choice of leaders. However, we have to
keep in mind that the adoption of this measure is a matter of necessity in order to comply
with a mandate that the Constitution itself has set out for us. Moreover, the implementation
of the provisions of RA No. 10153 as an interim measure is comparable to the interim
measures traditionally practiced when, for instance, the President appoints officials holding
elective offices upon the creation of new local government units.
The grant to the President of the power to appoint OICs in place of the elective members of
the Regional Legislative Assembly is neither novel nor innovative. The power granted to the
President, via RA No. 10153, to appoint members of the Regional Legislative Assembly is
comparable to the power granted by BP 881 (the Omnibus Election Code) to the President
to fill any vacancy for any cause in the Regional Legislative Assembly (then called the
Sangguniang Pampook).34
Executive is not bound by the principle of judicial courtesy
The petitioners in G.R. No. 197280, in their Manifestation and Motion dated December 21,
2011, question the propriety of the appointment by the President of Mujiv Hataman as
acting Governor and Bainon Karon as acting Vice Governor of the ARMM. They argue that
since our previous decision was based on a close vote of 8-7, and given the numerous
motions for reconsideration filed by the parties, the President, in recognition of the principle
of judicial courtesy, should have refrained from implementing our decision until we have
ruled with finality on this case.
We find the petitioners’ reasoning specious.

Firstly, the principle of judicial courtesy is based on the hierarchy of courts and applies only
to lower courts in instances where, even if there is no writ of preliminary injunction or TRO
issued by a higher court, it would be proper for a lower court to suspend its proceedings for
practical and ethical considerations.35 In other words, the principle of "judicial courtesy"
applies where there is a strong probability that the issues before the higher court would be
rendered moot and moribund as a result of the continuation of the proceedings in the lower
court or court of origin.36 Consequently, this principle cannot be applied to the President,
who represents a co-equal branch of government. To suggest otherwise would be to
disregard the principle of separation of powers, on which our whole system of government
is founded upon.
Secondly, the fact that our previous decision was based on a slim vote of 8-7 does not, and
cannot, have the effect of making our ruling any less effective or binding. Regardless of how
close the voting is, so long as there is concurrence of the majority of the members of the en
banc who actually took part in the deliberations of the case, 37 a decision garnering only 8
votes out of 15 members is still a decision of the Supreme Court en banc and must be
respected as such. The petitioners are, therefore, not in any position to speculate that,
Josef Elvin Campos
based on the voting, "the probability exists that their motion for reconsideration may be
granted."38
Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue Clarificatory
Resolution, argues that since motions for reconsideration were filed by the aggrieved
parties challenging our October 18, 2011 decision in the present case, the TRO we initially
issued on September 13, 2011 should remain subsisting and effective. He further argues
that any attempt by the Executive to implement our October 18, 2011 decision pending
resolution of the motions for reconsideration "borders on disrespect if not outright
insolence"39 to this Court.
In support of this theory, the petitioner cites Samad v. COMELEC, 40 where the Court held
that while it had already issued a decision lifting the TRO, the lifting of the TRO is not yet
final and executory, and can also be the subject of a motion for reconsideration. The
petitioner also cites the minute resolution issued by the Court in Tolentino v. Secretary of
Finance,41 where the Court reproached the Commissioner of the Bureau of Internal
Revenue for manifesting its intention to implement the decision of the Court, noting that the
Court had not yet lifted the TRO previously issued. 42
We agree with the petitioner that the lifting of a TRO can be included as a subject of a
motion for reconsideration filed to assail our decision. It does not follow, however, that the
TRO remains effective until after we have issued a final and executory decision, especially
considering the clear wording of the dispositive portion of our October 18, 2011 decision,
which states:
WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the

validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We
likewise LIFT the temporary restraining order we issued in our Resolution of September 13,
2011. No costs.43 (emphases ours)
In this regard, we note an important distinction between Tolentino and the present case.
While it may be true that Tolentino and the present case are similar in that, in both cases,
the petitions assailing the challenged laws were dismissed by the Court, an examination of
the dispositive portion of the decision in Tolentino reveals that the Court did not
categorically lift the TRO. In sharp contrast, in the present case, we expressly lifted the TRO
issued on September 13, 2011.1âwphi1 There is, therefore, no legal impediment to prevent
the President from exercising his authority to appoint an acting ARMM Governor and Vice
Governor as specifically provided for in RA No. 10153.
Conclusion
As a final point, we wish to address the bleak picture that the petitioner in G.R. No. 197282
presents in his motion, that our Decision has virtually given the President the power and
authority to appoint 672,416 OICs in the event that the elections of barangay and
Sangguniang Kabataan officials are postponed or cancelled.
We find this speculation nothing short of fear-mongering.
This argument fails to take into consideration the unique factual and legal circumstances
which led to the enactment of RA No. 10153. RA No. 10153 was passed in order to
synchronize the ARMM elections with the national and local elections. In the course of
synchronizing the ARMM elections with the national and local elections, Congress had to
grant the President the power to appoint OICs in the ARMM, in light of the fact that: (a)
holdover by the incumbent ARMM elective officials is legally impermissible; and (b)
Congress cannot call for special elections and shorten the terms of elective local officials for
less than three years.
Unlike local officials, as the Constitution does not prescribe a term limit for barangay and
Sangguniang Kabataan officials, there is no legal proscription which prevents these specific
government officials from continuing in a holdover capacity should some exigency require
the postponement of barangay or Sangguniang Kabataan elections. Clearly, these fears
have neither legal nor factual basis to stand on.
For the foregoing reasons, we deny the petitioners’ motions for reconsideration.
WHEREFORE, premises considered, we DENY with FINALITY the motions for
reconsideration for lack of merit and UPHOLD the constitutionality of RA No. 10153.
SO ORDERED.
ARTURO D. BRION
Associate Justice
Josef Elvin Campos
Gov. Villafuerte, Jr. and Prov. of Camsur v. Robredo, G.R. No. 195390, 10
December 2014
G.R. No. 195390 December 10, 2014
GOV. LUIS RAYMUND F. VILLAFUERTE, JR., and the PROVINCE OF CAMARINES
SUR, Petitioners,
vs.
HON. JESSE M. ROBREDO, in his capacity as Secretary of the Department of the
Interior and Local Government, Respondent.
DECISION
REYES, J.:
This is a petition for certiorari and prohibition 1 under Rule 65 of the 1997 Revised Rules of
Court filed by former Governor Luis Raymund F. Villafuerte, Jr. (Villafuerte) and the
Province of Camarines Sur (petitioners), seeking to annul and set aside the following
issuances of the late Honorable Jesse M. Robredo (respondent), in his capacity as then
Secretary of the Department of the Interior and Local Government (DILG), to wit:
(a) Memorandum Circular (MC) No. 2010-83dated August 31, 2010, pertaining to the
full disclosure of local budget and finances, and bids and public offerings; 2
(b) MC No. 2010-138 dated December 2, 2010, pertaining to the use of the 20%
component of the annual internal revenue allotment shares; 3 and
(c) MC No. 2011-08 dated January 13, 2011, pertaining to the strict adherence to
Section 90 of Republic Act (R.A.) No. 10147 or the General Appropriations Act of
2011.4
The petitioners seek the nullification of the foregoing issuances on the ground of
unconstitutionality and for having been issued with grave abuse of discretion amounting to
lack orexcess of jurisdiction.
The Facts
In 1995, the Commission on Audit (COA) conducted an examination and audit on the
manner the local government units (LGUs) utilized their Internal Revenue Allotment (IRA)
for the calendar years 1993-1994. The examination yielded an official report,showing that a
substantial portion of the 20% development fund of some LGUs was not actually utilized for
development projects but was diverted to expenses properly chargeable against the
Maintenance and Other Operating Expenses (MOOE), in stark violation of Section 287 of
R.A. No. 7160, otherwise known as the Local Government Code of 1991 (LGC). Thus, on
December 14, 1995, the DILG issued MC No. 95-216, 5 enumerating the policies and
guidelines on the utilization of the development fund component of the IRA. It likewise
carried a reminder to LGUs of the strict mandate to ensure that public funds, like the 20%
development fund, "shall bespent judiciously and only for the very purpose or purposes for
which such funds are intended."6
On September 20, 2005, then DILG Secretary Angelo T. Reyes and Department of Budget
and Management Secretary Romulo L. Neri issued Joint MC No. 1, series of
2005,7 pertaining to the guidelines on the appropriation and utilization of the 20% of the IRA
for development projects, which aims to enhance accountability of the LGUs in undertaking
development projects. The said memorandum circular underscored that the 20% of the IRA
intended for development projects should be utilized for social development, economic
development and environmental management.8
On August 31, 2010, the respondent, in his capacity as DILG Secretary, issued the assailed
MC No. 2010-83,9 entitled "Full Disclosure of Local Budget and Finances, and Bids and
Public Offerings," which aims to promote good governance through enhanced transparency
and accountability of LGUs. The pertinent portion of the issuance reads:
Legal and Administrative Authority
Section 352 of the Local Government Code of 1991 requires the posting within 30 days
from the end of eachfiscal year in at least three (3) publicly accessible and conspicuous
places in the local government unit a summary of all revenues collected and funds received
including the appropriations and disbursements of such funds during the preceding fiscal
year.
Josef Elvin Campos
On the other hand, Republic Act No. 9184, known as the Government Procurement Reform
Act, calls for the posting of the Invitation to Bid, Notice of Award, Notice to Proceed and
Approved Contract in the procuring entity’s premises, in newspapers of general circulation,
the Philippine Government Electronic Procurement System (PhilGEPS) and the website of
the procuring entity. The declared policy of the State to promote good local governance also
calls for the posting of budgets, expenditures, contracts and loans, and procurement plans
of local government units in conspicuous places within public buildings in the locality, inthe
web, and in print media of community or general circulation.
Furthermore, the President, in his first State of the Nation Address, directed all government
agencies and entities to bring to an end luxurious spending and misappropriation ofpublic
funds and to expunge mendacious and erroneous projects, and adhere to the zero-based
approach budgetary principle.
Responsibility of the Local Chief Executive

All Provincial Governors, City Mayors and Municipal Mayors, are directed to faithfully
comply with the above cited [sic] provisions of laws, and existing national policy, by posting
in conspicuous places within public buildings in the locality, or inprint media of community or
general circulation, and in their websites, the following:
1. CY 2010 Annual Budget, information detail to the level of particulars of personal

services, maintenance and other operating expenses and capital outlay per
individual offices (Source Document - Local Budget Preparation Form No. 3, titled,
Program Appropriation and Obligation by Object of Expenditure, limited to PS,
MOOE and CO. For sample form, please visit www.naga.gov.ph);
2. Quarterly Statement of Cash Flows, information detail to the level of particulars of
cash flows from operating activities (e.g. cash inflows, total cash inflows, total cash
outflows), cash flows from investing activities (e.g. cash outflows), net increase in
cash and cash at the beginning of the period (Source Document - Statement of Cash
Flows Form);
3. CY 2009 Statement of Receipts and Expenditures, information detail to the level of
particulars of beginning cash balance, receipts or income on local sources (e.g., tax
revenue, non-tax revenue), external sources, and receipts from loans and
borrowings, surplus of prior years, expenditures on general services, economic
services, social services and debt services, and total expenditures (Source
Document - Local Budget Preparation Form No. 2, titled, Statement of Receipts and
Expenditures);
4. CY 2010 Trust Fund (PDAF) Utilization, information detail to the level of
particulars of object expenditures (Source Document - Local Budget Preparation
Form No. 3, titled, Program Appropriation and Obligation by Object of Expenditure,
limited to PDAF Utilization);
5. CY 2010 Special Education Fund Utilization, information detail to the level of
particulars of object expenditures (Source Document - Local Budget Preparation
limited to Special Education Fund);
6. CY 2010 20% Component of the IRA Utilization, information detail to the level of
particulars of objects of expenditure on social development, economic development
and environmental management (Source Document - Local Budget Preparation
limited to 20% Component of the Internal Revenue Allotment);
7. CY 2010 Gender and Development Fund Utilization, information detail to the level
of particulars of object expenditures (Source Document - Local Budget Preparation
limited to Gender and Development Fund);
8. CY 2010 Statement of Debt Service, information detail to the level of name of

creditor, purpose of loan, date contracted, term, principal amount, previous payment
made on the principal and interest, amount due for the budget year and balance of
the principal (Source Document - Local Budget Preparation Form No. 6, titled,
Statement of Debt Service);
Josef Elvin Campos
9. CY 2010 Annual Procurement Plan or Procurement List, information detail to the
level ofname of project, individual item or article and specification or description of
goods and services, procurement method, procuring office or fund source, unit price
or estimated cost or approved budget for the contract and procurement schedule
(Source Document - LGU Form No. 02, Makati City. For sample form, please visit
www.makati.gov.ph.)[;]
10. Items to Bid, information detail to the level of individual Invitation to Bid,
containing information as prescribed in Section 21.1 of Republic Act No. 9184, or
The Government Procurement Reform Act, to be updated quarterly (Source
Document - Invitation to Apply for Eligibility and to Bid, as prescribed in Section 21.1
of R.A. No. 9184. For sample form, please visit www.naga.gov.ph);
11. Bid Results on Civil Works, and Goods and Services, information detail to the
level of project reference number, name and location of project, name (company and
proprietor) and address of winning bidder, bid amount, approved budget for the
contract, bidding date, and contract duration, to be updated quarterly (Source
Document – Infrastructure Projects/Goods and Services Bid-Out (2010), Naga City.
For sample form, please visit www.naga.gov.ph); and
12. Abstract of Bids as Calculated, information detail to the level of project name,
location, implementing office, approved budget for the contract, quantity and items
subject for bidding, and bids of competing bidders, to be updated quarterly (Source
Document - Standard Form No. SF-GOOD-40, Revised May 24, 2004, Naga City.
For sample form, please visit www.naga.gov.ph).
The foregoing circular also statesthat non-compliance will be meted sanctions in

accordance with pertinent laws, rules and regulations. 10
On December 2, 2010, the respondent issued MC No. 2010-138,11 reiterating that 20%
component of the IRA shall be utilized for desirable social, economic and environmental
outcomes essential to the attainment of the constitutional objective of a quality oflife for all.
It also listed the following enumeration of expenses for which the fund must not be utilized,
viz:
1. Administrative expenses such ascash gifts, bonuses, food allowance, medical
assistance, uniforms, supplies, meetings, communication, water and light, petroleum
products, and the like; 2. Salaries, wages or overtime pay;
3. Travelling expenses, whether domestic or foreign;
4. Registration or participation feesin training, seminars, conferences or conventions;
5. Construction, repairor refinishing of administrative offices;
6. Purchase of administrative office furniture, fixtures, equipment or appliances; and
7. Purchase, maintenance or repair of motor vehicles or motorcycles, except
ambulances.12 On January 13, 2011, the respondent issued MC No. 2011-
08,13 directing for the strict adherence toSection 90 of R.A. No. 10147 or the General
Appropriations Act of 2011. The pertinent portion of the issuance reads as follows:
Legal and Administrative Authority
● Section 90 of Republic Act No. 10147 (General Appropriations Act) FY 2011 re "Use and
Disbursement of Internal Revenue Allotment of LGUs", [sic] stipulates: The amount
appropriated for the LGU’s share in the Internal Revenue Allotment shall be used in
accordance with Sections 17 (g) and 287 of R.A. No 7160. The annual budgets of LGUs
shall be prepared in accordance with the forms, procedures, and schedules prescribed by
the Department of Budget and Management and those jointly issued with the Commission
on Audit. Strict compliance with Sections 288 and 354 of R.A. No. 7160 and DILG
Memorandum Circular No. 2010-83, entitled "Full Disclosure of Local Budget and Finances,
and Bids and Public offering" is hereby mandated; PROVIDED, That in addition to the
publication or posting requirement under Section 352 of R.A. No. 7160 in three (3) publicly
accessible and conspicuous places in the local government unit, the LGUs shall also post
the detailed information on the use and disbursement, and status of programs and projects
in the LGUS websites. Failure to comply with these requirements shall subject the
responsible officials to disciplinary actions in accordance with existing laws. x x x 14
xxxx
Sanctions
Non-compliance with the foregoing shall be dealt with in accordance with pertinent laws,
rules and regulations. In particular, attention is invited to the provision of the Local
Government Code of 1991, quoted as follows:
Josef Elvin Campos
Section 60. Grounds for Disciplinary Actions - An elective local official may be disciplined,
suspended, or removed from office on: (c) Dishonesty, oppression, misconduct in office,
gross negligence, or dereliction of duty. x x x 15 (Emphasis and underscoring in the original)
On February 21, 2011, Villafuerte, then Governor of Camarines Sur, joined by the Provincial
Government of Camarines Sur, filed the instant petition for certiorari, seeking to nullify the
assailed issuances of the respondent for being unconstitutional and having been issued
with grave abuse of discretion.
On June 2, 2011, the respondent filed his Comment on the petition. 16 Then, on June 22,
2011, the petitioners filed their Reply (With Urgent Prayer for the Issuance of a Writ of
Preliminary Injunction and/or Temporary Restraining Order). 17 In the Resolution18 dated
October 11, 2011, the Court gave due course to the petition and directed the parties to file
their respective memorandum. In compliance therewith, the respondent and the petitioners
filed their Memorandum on January 19, 201219 and on February 8, 201220 respectively.
The petitioners raised the following issues:
Issues
I
THE HON. SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN HEISSUED THE ASSAILED MEMORANDUM CIRCULARS IN
VIOLATION OF THE PRINCIPLES OF LOCAL AUTONOMY AND FISCAL AUTONOMY
ENSHRINED IN THE 1987 CONSTITUTION AND THE LOCAL GOVERNMENT CODE OF
1991[.]
II
THE HON. SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN HEINVALIDLY ASSUMED LEGISLATIVE POWERS IN
PROMULGATING THE ASSAILED MEMORANDUM CIRCULARS WHICH WENT
BEYOND THE CLEAR AND MANIFEST INTENT OF THE 1987 CONSTITUTION AND THE
LOCAL GOVERNMENT CODE OF 1991[.]21
Ruling of the Court
The present petition revolves around the main issue: Whether or not the assailed
memorandum circulars violate the principles of local and fiscal autonomy enshrined in the
Constitution and the LGC.
The present petition is ripe for judicial review.
At the outset, the respondent is questioning the propriety of the exercise of the Court’s
power of judicial review over the instant case. He argues that the petition is premature since
there is yet any actual controversy that is ripe for judicial determination. He points out the
lack of allegation in the petition that the assailed issuances had been fully implemented and
that the petitioners had already exhausted administrative remedies under Section 25 of the
Revised Administrative Code before filing the same in court. 22
It is well-settled that the Court’s exercise of the power of judicial review requires the
concurrence of the following elements: (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.23
The respondent claims that there isyet any actual case or controversy that calls for the
exercise of judicial review. He contends that the mere expectation of an administrative
sanction does not give rise to a justiciable controversy especially, in this case, that the
petitioners have yet to exhaust administrative remedies available. 24
The Court disagrees.
In La Bugal-B’laan Tribal Association, Inc. v. Ramos, 25 the Court characterized an actual

case or controversy, viz:
Josef Elvin Campos
An actual case or controversy means an existing case or controversy that is appropriate or
ripe for determination, not conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion. The power does not extend to hypothetical questions since
any attempt at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. 26 (Citations omitted)
The existence of an actual controversy in the instant case cannot be overemphasized. At

the time of filing of the instant petition, the respondent had already implemented the
assailed memorandum circulars. In fact, on May 26, 2011, Villafuerte received Audit
Observation Memorandum (AOM) No. 2011-009 dated May 10, 2011 27 from the Office of
the Provincial Auditor of Camarines Sur, requiring him to comment on the observation of the
audit team, which states:
The Province failed to post the transactions and documents required under Department of
Interior and Local Government (DILG) Memorandum Circular No. 2010-83, thereby violating
the mandate of full disclosure of Local Budget and Finances, and Bids and Public Offering.
xxxx
The local officials concerned are reminded of the sanctions mentioned in the circular which
is quoted hereunder, thus:
"Non compliance with the foregoing shall be dealt with in accordance with pertinent laws,
rules and regulations. In particular, attention is invited to the provision of Local Government
Code of 1991, quoted as follows:
Section 60. Grounds for Disciplinary Actions – An elective local official may be disciplined,
suspended or removed from office on: (c) Dishonesty, oppression, misconduct in office,
gross negligence or dereliction of duty."28
The issuance of AOM No. 2011-009 to Villafuerte is a clear indication that the assailed
issuances of the respondent are already in the full course of implementation. The audit
memorandum specifically mentioned of Villafuerte’s alleged non-compliance with MCNo.
2010-83 regarding the posting requirements stated in the circular and reiterated the
sanctions that may be imposed for the omission. The fact that Villafuerte is being required
to comment on the contents of AOM No. 2011-009 signifies that the process of investigation
for his alleged violation has already begun. Ultimately, the investigation is expected to end
in a resolution on whether a violation has indeed been committed, together with the
appropriate sanctions that come with it. Clearly, Villafuerte’s apprehension is real and well-
founded as he stands to be sanctioned for non-compliance with the issuances.
There is likewise no merit in the respondent’s claim that the petitioners’ failure to exhaust
administrative remedies warrants the dismissal of the petition. It bears emphasizing that the
assailed issuances were issued pursuant to the rule-making or quasi-legislative power of
the DILG. This pertains to "the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute." 29 Not to be confused
with the quasi-legislative or rule-making power of an administrative agency is its quasi-
judicial or administrative adjudicatory power. This 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. 30 In
challenging the validity of anadministrative issuance carried out pursuant to the agency’s
rule-making power, the doctrine of exhaustion of administrative remedies does not stand as
a bar in promptly resorting to the filing of a case in court. This was made clear by the Court
in Smart Communications, Inc. (SMART) v. National Telecommunications Commission
(NTC),31 where it was ruled, thus:
In questioning the validity or constitutionality of a rule or regulation issued by an

administrative agency, a party need not exhaust administrative remedies before going to
court. This principle applies only where the act of the administrative agency concerned was
performed pursuant to its quasi-judicial function, and not when the assailed act pertained to
its rule-making orquasi-legislative power. x x x. 32
Considering the foregoing clarification, there is thus no bar for the Court to resolve the
substantive issues raised in the petition.
Josef Elvin Campos
The assailed memorandum circulars do not transgress the local and fiscal autonomy
granted to LGUs.
The petitioners argue that the assailed issuances of the respondent interfere with the local
and fiscal autonomy of LGUs embodied in the Constitution and the LGC. In particular, they
claim that MC No. 2010-138 transgressed these constitutionally-protected liberties when it
restricted the meaning of "development" and enumerated activities which the local
government must finance from the 20% development fund component of the IRA and
provided sanctions for local authorities who shall use the said component of the fund for the
excluded purposes stated therein.33 They argue that the respondent cannot substitute his
own discretion with that of the local legislative council in enacting its annual budget and
specifying the development projects that the 20% component of its IRA should fund. 34
The argument fails to persuade.
The Constitution has expressly adopted the policy of ensuring the autonomy of LGUs. 35 To
highlight its significance, the entire Article X of the Constitution was devoted to laying down
the bedrock upon which this policy is anchored.
It is also pursuant to the mandate of the Constitution of enhancing local autonomy that the
LGC was enacted. Section 2 thereof was a reiteration of the state policy. It reads, thus:
make them more effective partners in the attainment ofnational goals. Toward this end, the
decentralization shall proceed from the national government to the local government units.
Verily, local autonomy means a more responsive and accountable local government
structure instituted through a system of decentralization. 36 In Limbona v. Mangelin,37 the
Court elaborated on the concept of decentralization, thus:
[A]utonomy is either decentralization of administration ordecentralization of power. There is

decentralization of administration when the central government delegates administrative
powers to political subdivisions in order to broaden the base of government power and in
the process to make local governments "more responsive and accountable," and "ensure
their fullest development as self-reliant communities and make them more effective partners
in the pursuit of national development and social progress." At the same time, it relieves the
central government of the burden of managing local affairs and enables it to concentrate on
national concerns. x x x. Decentralization of power, on the other hand, involves an
abdication of political power in the favor of local governments [sic] units declared to be
autonomous. In thatcase, the autonomous government is free to chart its own destiny and
shape its future with minimum intervention from central authorities. x x x. 38 (Citations
omitted)
To safeguard the state policy on local autonomy, the Constitution confines the power of the
President over LGUs to mere supervision.39 "The President exercises ‘general supervision’
over them, but only to ‘ensure that local affairs are administered according to law.’ He has
no control over their acts in the sense that he can substitute their judgments with his
own."40 Thus, Section 4, Article X of the Constitution, states:
Section 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.
In Province of Negros Occidental v. Commissioners, Commission on Audit, 41 the Court

distinguished general supervision from executive control in the following manner:
The President’s power of general supervision means the power of a superior officer to see
to it that subordinates perform their functions according to law. This is distinguished from
the President’s power of control which is the power to alter or modify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment
of the President over that of the subordinate officer. The power of control gives the
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President the power to revise or reverse the acts or decisions of a subordinate officer
involving the exercise of discretion.42 (Citations omitted)
It is the petitioners’ contention that the respondent went beyond the confines of his
supervisory powers, asalter ego of the President, when he issued MC No. 2010-138. They
arguethat the mandatory nature of the circular, with the threat of imposition of sanctions for
non-compliance, evinces a clear desire to exercise control over LGUs. 43
The Court, however, perceives otherwise.
A reading of MC No. 2010-138 shows that it is a mere reiteration of an existing provision in

the LGC. It was plainly intended to remind LGUs to faithfully observe the directive stated in
Section 287 of the LGC to utilize the 20% portion of the IRA for development projects. It
was, at best, an advisory to LGUs to examine themselves if they have been complying with
the law. It must be recalled that the assailed circular was issued in response to the report of
the COA that a substantial portion of the 20% development fund of some LGUs was not
actually utilized for development projects but was diverted to expenses more properly
categorized as MOOE, in violation of Section 287 of the LGC. This intention was highlighted
in the very first paragraph of MC No. 2010-138, which reads:
Section 287 of the Local Government Code mandates every local government to
appropriate in its annual budget no less than 20% of its annual revenue allotment for
development projects. In common understanding, development means the realization of
desirable social, economic and environmental outcomes essential in the attainment of the
constitutional objective of a desired quality of life for all. 44 (Underscoring in the original)
That the term developmentwas characterized asthe "realization of desirable social,

economic and environmental outcome" does not operate as a restriction of the term so as to
exclude some other activities that may bring about the same result. The definition was a
plain characterization of the concept of development as it is commonly understood. The
statement of a general definition was only necessary to illustrate among LGUs the nature of
expenses that are properly chargeable against the development fund component of the IRA.
It is expected to guide them and aid them in rethinking their ways so that they may be able
to rectify lapses in judgment, should there be any, or it may simply stand as a reaffirmation
of an already proper administration of expenses.
The same clarification may be said of the enumeration of expenses in MC No. 2010-138. To
begin with, it is erroneous to call them exclusions because such a term signifies compulsory
disallowance of a particular item or activity. This is not the contemplation of the
enumeration. Again, it is helpful to retrace the very reason for the issuance of the assailed
circular for a better understanding. The petitioners should be reminded that the issuance of
MC No. 2010-138 was brought about by the report of the COA that the development fund
was not being utilized accordingly. To curb the alleged misuse of the development fund, the
respondent deemed it proper to remind LGUs of the nature and purpose of the provision for
the IRA through MC No. 2010-138. To illustrate his point, heincluded the contested
enumeration of the items for which the development fund must generallynot be used. The
enumerated items comprised the expenses which the COA perceived to have been
improperly earmarked or charged against the development fund based on the audit it
conducted.
Contrary to the petitioners’ posturing, however, the enumeration was not meant to restrict
the discretion of the LGUs in the utilization of their funds. It was meant to enlighten LGUs as
to the nature of the development fund by delineating it from other types of expenses. It was
incorporated in the assailed circular in order to guide them in the proper disposition of the
IRA and avert further misuse of the fund by citing current practices which seemed to be
incompatible with the purpose of the fund. Even then, LGUs remain at liberty to map out
their respective development plans solely on the basis of their own judgment and utilize
their IRAs accordingly, with the only restriction that 20% thereof be expended for
development projects. They may even spend their IRAs for some of the enumerated items
should they partake of indirect costs of undertaking development projects. In such case,
however, the concerned LGU must ascertain that applicable rules and regulations on
budgetary allocation have been observed lest it be inviting an administrative probe.
The petitioners likewise misread the issuance by claiming that the provision of sanctions
therein is a clear indication of the President’s interference in the fiscalautonomy of LGUs.
The relevant portion of the assailed issuance reads, thus:
Josef Elvin Campos
All local authorities are further reminded that utilizing the 20% component of the Internal
Revenue Allotment, whether willfully or through negligence, for any purpose beyond those
expressly prescribed by law or public policy shall be subject to the sanctions provided under
the Local Government Code and under such other applicable laws. 45
Significantly, the issuance itself did not provide for sanctions. It did not particularly establish
a new set ofacts or omissions which are deemed violations and provide the corresponding
penalties therefor. It simply stated a reminder to LGUs that there are existing rules to
consider in the disbursement of the 20% development fund and that non-compliance
therewith may render them liable to sanctions which are provided in the LGC and other
applicable laws. Nonetheless, this warning for possible imposition of sanctions did not alter
the advisory nature of the issuance. At any rate, LGUs must be reminded that the local
autonomy granted to them does not completely severe them from the national government
or turn them into impenetrable states. Autonomy does not make local governments
sovereign within the state.46 InGanzon v. Court of Appeals,47 the Court reiterated:
Autonomy, however, is not meant to end the relation of partnership and interdependence
between the central administration and local government units, or otherwise, to usher in a
regime of federalism. The Charter has not taken such a radical step.1avvphi1 Local
governments, under the Constitution, are subject to regulation, however limited, and for no
other purpose than precisely, albeit paradoxically, to enhance self-government. 48
Thus, notwithstanding the local fiscal autonomy being enjoyed by LGUs, they are still under
the supervision of the President and maybe held accountable for malfeasance or violations
of existing laws. "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." 49
Clearly then, the President’s power of supervision is not antithetical to investigation and
imposition of sanctions. In Hon. Joson v. Exec. Sec. Torres, 50 the Court pointed out, thus:
"Independently of any statutory provision authorizing the President to conduct an
investigation of the nature involved in this proceeding, and in view of the nature and
character of the executive authority with which the President of the Philippines is invested,
the constitutional grant to him of power to exercise general supervision over all local
governments and to take care that the laws be faithfully executed must be construed to
authorize him to order an investigation of the act or conduct of the petitioner herein.
Supervision is not a meaningless thing. It is an active power. It is certainly not without
limitation, but it at least implies authority to inquire into facts and conditions in order to
render the power real and effective. x x x." 51 (Emphasis ours and italics in the original)
As in MC No. 2010-138, the Court finds nothing in two other questioned issuances of the
respondent, i.e., MC Nos. 2010-83 and 2011-08, that can be construed as infringing onthe
fiscal autonomy of LGUs. The petitioners claim that the requirement to post other
documents in the mentioned issuances went beyond the letter and spirit of Section 352 of
the LGC and R.A. No. 9184, otherwise known as the Government Procurement Reform Act,
by requiring that budgets, expenditures, contracts and loans, and procurement plans of
LGUs be publicly posted as well.52
Pertinently, Section 352 of the LGC reads:

Section 352. Posting of the Summary of Income and Expenditures.– Local treasurers,
accountants, budget officers, and other accountable officers shall, within thirty (30) days
from the end of the fiscal year, post in at least three (3) publicly accessible and conspicuous
places in the local government unit a summary of all revenues collected and funds received
including the appropriations and disbursements of such funds during the preceding fiscal
year.
R.A. No. 9184, on the other hand, requires the posting of the invitation to bid, notice of
award, notice to proceed, and approved contract in the procuring entity’s premises, in
newspapers of general circulation, and the website of the procuring entity. 53
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It is well to remember that fiscal autonomy does not leave LGUs with unbridled discretion in
the disbursement of public funds. They remain accountable to their constituency. For, public
office was created for the benefit of the people and not the person who holds office.
The Court strongly enunciated in ABAKADA GURO Party List (formerly AASJS), et al.
v.Hon. Purisima, et al.,54 thus:
Public office is a public trust. It must be discharged by its holder not for his own personal
gain but for the benefit of the public for whom he holds it in trust. By demanding
accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and
justice, all government officials and employees havethe duty to be responsive to the needs
of the people they are called upon to serve. 55
Thus, the Constitution strongly summoned the State to adopt and implement a policy of full
disclosure of all transactions involving public interest and provide the people with the right to
access public information.56 Section 352 of the LGC is a response to this call for
transparency. It is a mechanism of transparency and accountability of local government
officials and is in fact incorporated under Chapter IV of the LGC which deals with
"Expenditures, Disbursements, Accounting and Accountability."
In the same manner, R.A. No. 9184 established a system of transparency in the
procurement process and in the implementation of procurement contracts in government
agencies.57 It is the public monitoring of the procurement process and the implementation of
awarded contracts with the end in view of guaranteeing that these contracts are awarded
pursuant to the provisions of the law and its implementing rules and regulations, and that all
these contracts are performed strictly according to specifications. 58
The assailed issuances of the respondent, MC Nos. 2010-83 and 2011-08, are but
implementation of this avowed policy of the State to make public officials accountable to the
people. They are amalgamations of existing laws, rules and regulation designed to give
teeth to the constitutional mandate of transparency and accountability.
A scrutiny of the contents of the mentioned issuances shows that they do not, in any
manner, violate the fiscal autonomy of LGUs. To be clear, "[f]iscal autonomy means that
power to allocate their resources in accordance withtheir own priorities.It extends to the
thereof."59
It is inconceivable, however, how the publication of budgets, expenditures, contracts and
loans and procurement plans of LGUs required in the assailed issuances could have
infringed on the local fiscal autonomy of LGUs. Firstly, the issuances do not interfere with
the discretion of the LGUs in the specification of their priority projects and the allocation of
their budgets. The posting requirements are mere transparency measures which do not at
all hurt the manner by which LGUs decide the utilization and allocation of their funds.
Secondly, it appears that even Section 352 of the LGC that is being invoked by the
petitioners does not exclude the requirement for the posting of the additional documents
stated in MC Nos. 2010-83 and 2011-08. Apparently, the mentioned provision requires the
publication of "a summary of revenues collected and funds received, including the
appropriations and disbursements of such funds." The additional requirement for the posting
of budgets, expenditures, contracts and loans, and procurement plans are well-within the
contemplation of Section 352 of the LGC considering they are documents necessary for an
accurate presentation of a summary of appropriations and disbursements that an LGU is
required to publish.
Finally, the Court believes that the supervisory powers of the President are broad enough to
embrace the power to require the publication of certain documents as a mechanism of
transparency. In Pimentel,Jr. v. Hon. Aguirre, 60 the Court reminded that localfiscal autonomy
does not rule out any manner of national government intervention by way of supervision, in
order to ensure that local programs, fiscal and otherwise, are consistent with national goals.
The President, by constitutional fiat, is the head of the economic and planning agency of the
government, primarily responsible for formulating and implementing continuing, coordinated
and integrated social and economic policies, plans and programs for the entire
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country.61 Moreover, the Constitution, which was drafted after long years of dictatorship and
abuse of power, is now replete with numerous provisions directing the adoption of
measures to uphold transparency and accountability in government, with a view of
protecting the nation from repeating its atrocious past. In particular, the Constitution
commands the strict adherence to full disclosure of information onall matters relating to
official transactions and those involving public interest. Pertinently, Section 28, Article II and
Section 7, Article III of the Constitution, provide:
Article II Declaration of Principles and State Policies Principles
Section 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest.
Article III
Bill of Rights
Section 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.
In the instant case, the assailed issuances were issued pursuant to the policy of promoting
good governance through transparency, accountability and participation. The action of the
respondent is certainly within the constitutional bounds of his power as alter ego of the
President.
It is needless to say that the power to govern is a delegated authority from the people who
hailed the public official to office through the democratic process of election. His stay in
office remains a privilege which may be withdrawn by the people should he betray his oath
of office. Thus, he must not frown upon accountability checks which aim to show how well
he is performing his delegated power. For, it is through these mechanisms of transparency
and accountability that he is able to prove to his constituency that he is worthy of the
continued privilege.
WHEREFORE, in view of the foregoing considerations, the petition is DISMISSED for lack
of merit.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
C. The Local Government Code, as amended

1. Effectivity
2. Rules of Interpretation
II. General Powers and Attribute of LGUs
A. Sources of Powers
B. Governmental Powers
1. Police power aka General Welfare Clause (Sec. 16, LGC)
SECTION 16. General Welfare. – Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the
promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among
other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology,
encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
Cases:
Dela Cruz v. Paras (G.R. No. L-42571-72, 25 July 1983)
G.R. No. L-42571-72 July 25, 1983
Josef Elvin Campos
VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ,
TERESITA CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE
VILLANUEVA, HONORATO BUENAVENTURA, RUBEN DE CASTRO, VICENTE
ROXAS, RICARDO DAMIAN, DOMDINO ROMDINA, ANGELINA OBLIGACION,
CONRADO GREGORIO, TEODORO REYES, LYDIA ATRACTIVO, NAPOLEON
MENDOZA, PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA DURAN,
SOCORRO BERNARDEZ, and PEDRO GABRIEL, petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor,
MARIO MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF
BOCAUE, BULACAN, respondents.
Federico N. Alday for petitioners.
Dakila F. Castro for respondents.
FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or not a municipal
corporation, Bocaue, Bulacan, represented by respondents, 1 can, prohibit the exercise of a
lawful trade, the operation of night clubs, and the pursuit of a lawful occupation, such clubs
employing hostesses. It is contended that the ordinance assailed as invalid is tainted with
nullity, the municipality being devoid of power to prohibit a lawful business, occupation or
calling, petitioners at the same time alleging that their rights to due process and equal
protection of the laws were violated as the licenses previously given to them was in effect
withdrawn without judicial hearing. 2
The assailed ordinance 3 is worded as follows: "Section 1.— Title of Ordinance.— This
Ordinance shall be known and may be cited as the [Prohibition and Closure Ordinance] of
Bocaue, Bulacan. Section 2. — Definitions of Terms — (a) 'Night Club' shall include any
place or establishment selling to the public food or drinks where customers are allowed to
dance. (b) 'Cabaret' or 'Dance Hall' shall include any place or establishment where dancing
is permitted to the public and where professional hostesses or hospitality girls and
professional dancers are employed. (c) 'Professional hostesses' or 'hospitality girls' shall
include any woman employed by any of the establishments herein defined to entertain
guests and customers at their table or to dance with them. (d) 'Professional dancer' shall
include any woman who dances at any of the establishments herein defined for a fee or
remuneration paid directly or indirectly by the operator or by the persons she dances with.
(e) 'Operator' shall include the owner, manager, administrator or any person who operates
and is responsible for the operation of any night club, cabaret or dance hall. Section 3.
— Prohibition in the Issuance and Renewal of Licenses, Permits. — Being the principal
cause in the decadence of morality and because of their other adverse effects on this
community as explained above, no operator of night clubs, cabarets or dance halls shall
henceforth be issued permits/licenses to operate within the jurisdiction of the municipality
and no license/permit shall be issued to any professional hostess, hospitality girls and
professional dancer for employment in any of the aforementioned establishments. The
prohibition in the issuance of licenses/permits to said persons and operators of said
establishments shall include prohibition in the renewal thereof. Section 4.— Revocation of
Permits and Licenses.— The licenses and permits issued to operators of night clubs,
cabarets or dance halls which are now in operation including permits issued to professional
hostesses, hospitality girls and professional dancers are hereby revoked upon the
expiration of the thirty-day period given them as provided in Section 8 hereof and
thenceforth, the operation of these establishments within the jurisdiction of the municipality
shall be illegal. Section 5.— Penalty in case of violation. — Violation of any of the
provisions of this Ordinance shall be punishable by imprisonment not exceeding three (3)
months or a fine not exceeding P200.00 or both at the discretion of the Court. If the offense
is committed by a juridical entity, the person charged with the management and/or operation
thereof shall be liable for the penalty provided herein. Section 6. — Separability Clause.—
If, for any reason, any section or provision of this Ordinance is held unconstitutional or
invalid, no other section or provision hereof shall be affected thereby. Section 7.
— Repealing Clause.— All ordinance, resolutions, circulars, memoranda or parts thereof
that are inconsistent with the provisions of this Ordinance are hereby repealed. Section 8.
— Effectivity.— This Ordinance shall take effect immediately upon its approval; provided,
however, that operators of night clubs, cabarets and dance halls now in operation including
professional hostesses, hospitality girls and professional dancers are given a period of thirty
days from the approval hereof within which to wind up their businesses and comply with the
provisions of this Ordinance." 4
Josef Elvin Campos
On November 5, 1975, two cases for prohibition with preliminary injunction were filed with
the Court of First Instance of Bulacan. 5 The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful
business, occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal
protection of the law, as the license previously given to petitioners was in effect withdrawn
without judicial hearing. 3. That under Presidential Decree No. 189, as amended, by
Presidential Decree No. 259, the power to license and regulate tourist-oriented businesses
including night clubs, has been transferred to the Department of Tourism." 6 The cases were
assigned to respondent Judge, now Associate Justice Paras of the Intermediate Appellate
Court, who issued a restraining order on November 7, 1975. The answers were thereafter
filed. It was therein alleged: " 1. That the Municipal Council is authorized by law not only to
regulate but to prohibit the establishment, maintenance and operation of night clubs
invoking Section 2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The
Ordinance No. 84 is not violative of petitioners' right to due process and the equal protection
of the law, since property rights are subordinate to public interests. 3. That Presidential
Decree No. 189, as amended, did not deprive Municipal Councils of their jurisdiction to
regulate or prohibit night clubs." 7 There was the admission of the following facts as having
been established: "l. That petitioners Vicente de la Cruz, et al. in Civil Case No. 4755-M had
been previously issued licenses by the Municipal Mayor of Bocaue-petitioner Jose Torres
III, since 1958; petitioner Vicente de la Cruz, since 1960; petitioner Renato Alipio, since
1961 and petitioner Leoncio Corpuz, since 1972; 2. That petitioners had invested large
sums of money in their businesses; 3. That the night clubs are well-lighted and have no
partitions, the tables being near each other; 4. That the petitioners owners/operators of
these clubs do not allow the hospitality girls therein to engage in immoral acts and to go out
with customers; 5. That these hospitality girls are made to go through periodic medical
check-ups and not one of them is suffering from any venereal disease and that those who
fail to submit to a medical check-up or those who are found to be infected with venereal
disease are not allowed to work; 6. That the crime rate there is better than in other parts of
Bocaue or in other towns of Bulacan." 8 Then came on January 15, 1976 the decision
upholding the constitutionality and validity of Ordinance No. 84 and dismissing the cases.
Hence this petition for certiorari by way of appeal.
In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its
rationale is set forth in the opening paragraph thus: "Those who lust cannot last. This in
essence is why the Municipality of Bocaue, Province of Bulacan, stigmatized as it has been
by innuendos of sexual titillation and fearful of what the awesome future holds for it, had no
alternative except to order thru its legislative machinery, and even at the risk of partial
economic dislocation, the closure of its night clubs and/or cabarets. This in essence is also
why this Court, obedient to the mandates of good government, and cognizant of the
categorical imperatives of the current legal and social revolution, hereby [upholds] in the
name of police power the validity and constitutionality of Ordinance No. 84, Series of 1975,
of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore issued in
these two cases are therefore hereby rifted, effective the first day of February, 1976, the
purpose of the grace period being to enable the petitioners herein to apply to the proper
appellate tribunals for any contemplated redress." 9 This Court is, however, unable to agree
with such a conclusion and for reasons herein set forth, holds that reliance on the police
power is insufficient to justify the enactment of the assailed ordinance. It must be declared
null and void.
1. Police power is granted to municipal corporations in general terms as follows: "General

power of council to enact ordinances and make regulations. - The municipal council shall
enact such ordinances and make such regulations, not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred upon it by law
and such as shall seem necessary and proper to provide for the health and safety, promote
the prosperity, improve the morals, peace, good order, comfort, and convenience of the
municipality and the inhabitants thereof, and for the protection of property therein." 10 It is
practically a reproduction of the former Section 39 of Municipal Code. 11 An ordinance
enacted by virtue thereof, according to Justice Moreland, speaking for the Court in the
leading case of United States v. Abendan 12 "is valid, unless it contravenes the fundamental
law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is against
public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of
common right. Where the power to legislate upon a given subject, and the mode of its
exercise and the details of such legislation are not prescribed, the ordinance passed
Josef Elvin Campos
pursuant thereto must be a reasonable exercise of the power, or it will be pronounced
invalid." 13 In another leading case, United States v. Salaveria, 14 the ponente this time being
Justice Malcolm, where the present Administrative Code provision was applied, it was
stated by this Court: "The general welfare clause has two branches: One branch attaches
itself to the main trunk of municipal authority, and relates to such ordinances and
regulations as may be necessary to carry into effect and discharge the powers and duties
conferred upon the municipal council by law. With this class we are not here directly
concerned. The second branch of the clause is much more independent of the specific
functions of the council which are enumerated by law. It authorizes such ordinances as shall
seem necessary and proper to provide for the health and safety, promote the prosperity,
improve the morals, peace, good order, comfort, and convenience of the municipality and
the inhabitants thereof, and for the protection of property therein.' It is a general rule that
ordinances passed by virtue of the implied power found in the general welfare clause must
be reasonable, consonant with the general powersand purposes of the corporation, and not
inconsistent with the laws or policy of the State." 15 If night clubs were merely then regulated
and not prohibited, certainly the assailed ordinance would pass the test of validity. In the
two leading cases above set forth, this Court had stressed reasonableness, consonant with
the general powers and purposes of municipal corporations, as well as consistency with the
laws or policy of the State. It cannot be said that such a sweeping exercise of a lawmaking
power by Bocaue could qualify under the term reasonable. The objective of fostering public
morals, a worthy and desirable end can be attained by a measure that does not encompass
too wide a field. Certainly the ordinance on its face is characterized by overbreadth. The
purpose sought to be achieved could have been attained by reasonable restrictions rather
than by an absolute prohibition. The admonition in Salaveria should be heeded: "The
Judiciary should not lightly set aside legislative action when there is not a clear invasion of
personal or property rights under the guise of police regulation." 16 It is clear that in the guise
of a police regulation, there was in this instance a clear invasion of personal or property
rights, personal in the case of those individuals desirous of patronizing those night clubs
and property in terms of the investments made and salaries to be earned by those therein
employed.
2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was
originally enacted on June 20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR
CITY BOARDS AND COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT,
MAINTENANCE AND OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN
THEIR RESPECTIVE TERRITORIAL JURISDICTIONS.' 18 Its first section insofar as
pertinent reads: "The municipal or city board or council of each chartered city shall have the
power to regulate by ordinance the establishment, maintenance and operation of night
clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard
pools, and other similar places of amusement within its territorial jurisdiction: ... " 19 Then on
May 21, 1954, the first section was amended to include not merely "the power to regulate,
but likewise "Prohibit ... " 20 The title, however, remained the same. It is worded exactly as
Republic Act No. 938. It is to be admitted that as thus amended, if only the above portion of
the Act were considered, a municipal council may go as far as to prohibit the operation of
night clubs. If that were all, then the appealed decision is not devoid of support in law. That
is not all, however. The title was not in any way altered. It was not changed one whit. The
exact wording was followed. The power granted remains that of regulation, not prohibition.
There is thus support for the view advanced by petitioners that to construe Republic Act No.
938 as allowing the prohibition of the operation of night clubs would give rise to a
constitutional question. The Constitution mandates: "Every bill shall embrace only one
subject which shall be expressed in the title thereof. " 21 Since there is no dispute as the title
limits the power to regulating, not prohibiting, it would result in the statute being invalid if, as
was done by the Municipality of Bocaue, the operation of a night club was prohibited. There
is a wide gap between the exercise of a regulatory power "to provide for the health and
safety, promote the prosperity, improve the morals, 22 in the language of the Administrative
Code, such competence extending to all "the great public needs, 23 to quote from Holmes,
and to interdict any calling, occupation, or enterprise. In accordance with the well-settled
principle of constitutional construction that between two possible interpretations by one of
which it will be free from constitutional infirmity and by the other tainted by such grave
defect, the former is to be preferred. A construction that would save rather than one that
would affix the seal of doom certainly commends itself. We have done so before We do so
again. 24
Josef Elvin Campos
3. There is reinforcement to the conclusion reached by virtue of a specific provision of the
recently-enacted Local Government Code. 25 The general welfare clause, a reiteration of the
Administrative Code provision, is set forth in the first paragraph of Section 149 defining the
powers and duties of the sangguniang bayan. It read as follows: "(a) Enact such ordinances
and issue such regulations as may be necessary to carry out and discharge the
responsibilities conferred upon it by law, and such as shall be necessary and proper to
provide for the health, safety, comfort and convenience, maintain peace and order, improve
public morals, promote the prosperity and general welfare of the municipality and the
inhabitants thereof, and insure the protection of property therein; ..." 26 There are in addition
provisions that may have a bearing on the question now before this Court. Thus
the sangguniang bayan shall "(rr) Regulate cafes, restaurants, beer-houses, hotels, motels,
inns, pension houses and lodging houses, except travel agencies, tourist guides, tourist
transports, hotels, resorts, de luxe restaurants, and tourist inns of international standards
which shall remain under the licensing and regulatory power of the Ministry of Tourism
which shall exercise such authority without infringing on the taxing or regulatory powers of
the municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths
or massage parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical
performances, circuses and other forms of entertainment; ..." 27 It is clear that municipal
corporations cannot prohibit the operation of night clubs. They may be regulated, but not
prevented from carrying on their business. It would be, therefore, an exercise in futility if the
decision under review were sustained. All that petitioners would have to do is to apply once
more for licenses to operate night clubs. A refusal to grant licenses, because no such
businesses could legally open, would be subject to judicial correction. That is to comply with
the legislative will to allow the operation and continued existence of night clubs subject to
appropriate regulations. In the meanwhile, to compel petitioners to close their
establishments, the necessary result of an affirmance, would amount to no more than a
temporary termination of their business. During such time, their employees would undergo a
period of deprivation. Certainly, if such an undesirable outcome can be avoided, it should
be. The law should not be susceptible to the reproach that it displays less than sympathetic
concern for the plight of those who, under a mistaken appreciation of a municipal power,
were thus left without employment. Such a deplorable consequence is to be avoided. If it
were not thus, then the element of arbitrariness enters the picture. That is to pay less, very
much less, than full deference to the due process clause with its mandate of fairness and
reasonableness.
4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute
stand sustaining police power legislation to promote public morals. The commitment to such
an Ideal forbids such a backward step. Legislation of that character is deserving of the
fullest sympathy from the judiciary. Accordingly, the judiciary has not been hesitant to lend
the weight of its support to measures that can be characterized as falling within that aspect
of the police power. Reference is made by respondents to Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila. 28 There is a misapprehension as to
what was decided by this Court. That was a regulatory measure. Necessarily, there was no
valid objection on due process or equal protection grounds. It did not prohibit motels. It
merely regulated the mode in which it may conduct business in order precisely to put an
end to practices which could encourage vice and immorality. This is an entirely different
case. What was involved is a measure not embraced within the regulatory power but an
exercise of an assumed power to prohibit. Moreover, while it was pointed out in the
aforesaid Ermita-Malate Hotel and Motel Operators Association, Inc. decision that there
must be a factual foundation of invalidity, it was likewise made clear that there is no need to
satisfy such a requirement if a statute were void on its face. That it certainly is if the power
to enact such ordinance is at the most dubious and under the present Local Government
Code non-existent.
WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated
January 15, 1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the
Municipality of Bocaue is declared void and unconstitutional. The temporary restraining
order issued by this Court is hereby made permanent. No costs.
Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin Relova and
Gutierrez, Jr., JJ., concur.
Makasiar, J, reserves his right to file a dissent.
De Castro, Melencio-Herrera and Vasquez, JJ., are on leave.
Josef Elvin Campos
Binay v. Domingo (G.R. No. 92389, 11 September 1991)
G.R. No. 92389 September 11, 1991
HON. JEJOMAR C. BINAY and the MUNICIPALITY OF MAKATI, petitioners,
vs.
HON. EUFEMIO DOMINGO and the COMMISSION ON AUDIT, respondents.
Jejomar C. Binay for himself and for his co-petitioner.
Manuel D. Tamase and Rafael C. Marquez for respondents.
PARAS, J.:
The only pivotal issue before Us is whether or not Resolution No. 60, re-enacted under
Resolution No. 243, of the Municipality of Makati is a valid exercise of police power under
the general welfare clause.
The pertinent facts are:
On September 27, 1988, petitioner Municipality, through its Council, approved Resolution
No. 60 which reads:
A RESOLUTION TO CONFIRM AND/OR RATIFY THE ONGOING BURIAL
ASSISTANCE PROGRAM INITIATED BY THE OFFICE OF THE MAYOR, OF
EXTENDING FINANCIAL ASSISTANCE OF FIVE HUNDRED PESOS (P500.00) TO
A BEREAVED FAMILY, FUNDS TO BE TAKEN OUT OF UNAPPROPRIATED
AVAILABLE FUNDS EXISTING IN THE MUNICIPAL TREASURY. (Rollo, Annnex
"A" p. 39)
Qualified beneficiaries, under the Burial Assistance Program, are bereaved families of
Makati whose gross family income does not exceed two thousand pesos (P2,000.00) a
month. The beneficiaries, upon fulfillment of other requirements, would receive the amount
of five hundred pesos (P500.00) cash relief from the Municipality of Makati. (Reno, Annex
"13", p. 41)
Metro Manila Commission approved Resolution No. 60. Thereafter, the municipal secretary
certified a disbursement fired of four hundred thousand pesos (P400,000.00) for the
implementation of the Burial Assistance Program. (Rollo, Annex "C", p. 43).
Resolution No. 60 was referred to respondent Commission on Audit (COA) for its expected
allowance in audit. Based on its preliminary findings, respondent COA disapproved
Resolution No. 60 and disallowed in audit the disbursement of finds for the implementation
thereof. (Rollo, Annex "D", P. 44)
Two letters for reconsideration (Annexes "E" and "F", Rollo, pp. 45 and 48, respectively)
filed by petitioners Mayor Jejomar Binay, were denied by respondent in its Decision No.
1159, in the following manner:
Your request for reconsideration is predicated on the following grounds, to wit:
1. Subject Resolution No. 60, s. 1988, of the Municipal Council of Makati and the
intended disbursements fall within the twin principles of 'police power and parens
patriae and
2. The Metropolitan Manila Commission (MMC), under a Certification, dated June 5,
1989, has already appropriated the amount of P400,000.00 to implement the Id
resolution, and the only function of COA on the matter is to allow the financial
assistance in question.
The first contention is believed untenable. Suffice it to state that:
a statute or ordinance must have a real substantial, or rational relation to the
public safety, health, morals, or general welfare to be sustained as a
legitimate exercise of the police power. The mere assertion by the legislature
that a statute relates to the public health, safety, or welfare does not in itself
bring the statute within the police power of a state for there must always be
an obvious and real connection between the actual provisions of a police
regulations and its avowed purpose, and the regulation adopted must be
reasonably adapted to accomplish the end sought to be attained. 16 Am. Jur
2d, pp. 542-543; emphasis supplied).
Here, we see no perceptible connection or relation between the objective sought to
be attained under Resolution No. 60, s. 1988, supra, and the alleged public safety,
general welfare, etc. of the inhabitants of Makati.
Josef Elvin Campos
Anent the second contention, let it be stressed that Resolution No. 60 is still subject
to the limitation that the expenditure covered thereby should be for a public purpose,
i.e., that the disbursement of the amount of P500.00 as burial assistance to a
bereaved family of the Municipality of Makati, or a total of P400,000.00 appropriated
under the Resolution, should be for the benefit of the whole, if not the majority, of the
inhabitants of the Municipality and not for the benefit of only a few individuals as in
the present case. On this point government funds or property shall be spent or used
solely for public purposes. (Cf. Section 4[2], P.D. 1445). (pp. 50-51, Rollo)
Bent on pursuing the Burial Assistance Program the Municipality of Makati, through its
Council, passed Resolution No. 243, re-affirming Resolution No. 60 (Rollo, Annex "H", p.
52).
However, the Burial Assistance Program has been stayed by COA Decision No. 1159.
Petitioner, through its Mayor, was constrained to file this special civil action of certiorari
praying that COA Decision No. 1159 be set aside as null and void.
The police power is a governmental function, an inherent attribute of sovereignty, which was
born with civilized government. It is founded largely on the maxims, "Sic utere tuo et
ahenum non laedas and "Salus populi est suprema lex Its fundamental purpose is securing
the general welfare, comfort and convenience of the people.
Police power is inherent in the state but not in municipal corporations (Balacuit v. CFI of
Agusan del Norte, 163 SCRA 182). Before a municipal corporation may exercise such
power, there must be a valid delegation of such power by the legislature which is the
repository of the inherent powers of the State. A valid delegation of police power may arise
from express delegation, or be inferred from the mere fact of the creation of the municipal
corporation; and as a general rule, municipal corporations may exercise police powers
within the fair intent and purpose of their creation which are reasonably proper to give effect
to the powers expressly granted, and statutes conferring powers on public corporations
have been construed as empowering them to do the things essential to the enjoyment of life
and desirable for the safety of the people. (62 C.J.S., p. 277). The so-called inferred police
powers of such corporations are as much delegated powers as are those conferred in
express terms, the inference of their delegation growing out of the fact of the creation of the
municipal corporation and the additional fact that the corporation can only fully accomplish
the objects of its creation by exercising such powers. (Crawfordsville vs. Braden, 28 N.E.
849). Furthermore, municipal corporations, as governmental agencies, must have such
measures of the power as are necessary to enable them to perform their governmental
functions. The power is a continuing one, founded on public necessity. (62 C.J.S. p. 273)
Thus, not only does the State effectuate its purposes through the exercise of the police
power but the municipality does also. (U.S. v. Salaveria, 39 Phil. 102).
Municipal governments exercise this power under the general welfare clause: pursuant
thereto they are clothed with authority to "enact such ordinances and issue such regulations
as may be necessary to carry out and discharge the responsibilities conferred upon it by
law, and such as shall be necessary and proper to provide for the health, safety, comfort
and convenience, maintain peace and order, improve public morals, promote the prosperity
and general welfare of the municipality and the inhabitants thereof, and insure the
protection of property therein." (Sections 91, 149, 177 and 208, BP 337). And under Section
7 of BP 337, "every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary and proper for
governance such as to promote health and safety, enhance prosperity, improve morals, and
maintain peace and order in the local government unit, and preserve the comfort and
convenience of the inhabitants therein."
Police power is the power to prescribe regulations to promote the health, morals, peace,
education, good order or safety and general welfare of the people. It is the most essential,
insistent, and illimitable of powers. In a sense it is the greatest and most powerful attribute
of the government. It is elastic and must be responsive to various social conditions.
(Sangalang, et al. vs. IAC, 176 SCRA 719). On it depends the security of social order, the
life and health of the citizen, the comfort of an existence in a thickly populated community,
the enjoyment of private and social life, and the beneficial use of property, and it has been
said to be the very foundation on which our social system rests. (16 C.J.S., P. 896)
However, it is not confined within narrow circumstances of precedents resting on past
Josef Elvin Campos
conditions; it must follow the legal progress of a democratic way of life. (Sangalang, et al.
vs. IAC, supra).
In the case at bar, COA is of the position that there is "no perceptible connection or relation
between the objective sought to be attained under Resolution No. 60, s. 1988, supra, and
the alleged public safety, general welfare. etc. of the inhabitants of Makati." (Rollo, Annex
"G", p. 51).
Apparently, COA tries to re-define the scope of police power by circumscribing its exercise
to "public safety, general welfare, etc. of the inhabitants of Makati."
In the case of Sangalang vs. IAC, supra, We ruled that police power is not capable of an
exact definition but has been, purposely, veiled in general terms to underscore its all
comprehensiveness. Its scope, over-expanding to meet the exigencies of the times, even to
anticipate the future where it could be done, provides enough room for an efficient and
flexible response to conditions and circumstances thus assuring the greatest benefits.
The police power of a municipal corporation is broad, and has been said to be
commensurate with, but not to exceed, the duty to provide for the real needs of the people
in their health, safety, comfort, and convenience as consistently as may be with private
rights. It extends to all the great public needs, and, in a broad sense includes all legislation
and almost every function of the municipal government. It covers a wide scope of subjects,
and, while it is especially occupied with whatever affects the peace, security, health, morals,
and general welfare of the community, it is not limited thereto, but is broadened to deal with
conditions which exists so as to bring out of them the greatest welfare of the people by
promoting public convenience or general prosperity, and to everything worthwhile for the
preservation of comfort of the inhabitants of the corporation (62 C.J.S. Sec. 128). Thus, it is
deemed inadvisable to attempt to frame any definition which shall absolutely indicate the
limits of police power.
COA's additional objection is based on its contention that "Resolution No. 60 is still subject
to the limitation that the expenditure covered thereby should be for a public purpose, ...
should be for the benefit of the whole, if not the majority, of the inhabitants of the
Municipality and not for the benefit of only a few individuals as in the present case." (Rollo,
Annex "G", p. 51).
COA is not attuned to the changing of the times. Public purpose is not unconstitutional
merely because it incidentally benefits a limited number of persons. As correctly pointed out
by the Office of the Solicitor General, "the drift is towards social welfare legislation geared
towards state policies to provide adequate social services (Section 9, Art. II, Constitution),
the promotion of the general welfare (Section 5, Ibid) social justice (Section 10, Ibid) as well
as human dignity and respect for human rights. (Section 11, Ibid." (Comment, p. 12)
The care for the poor is generally recognized as a public duty. The support for the poor has
long been an accepted exercise of police power in the promotion of the common good.
There is no violation of the equal protection clause in classifying paupers as subject of

legislation. Paupers may be reasonably classified. Different groups may receive varying
treatment. Precious to the hearts of our legislators, down to our local councilors, is the
welfare of the paupers. Thus, statutes have been passed giving rights and benefits to the
disabled, emancipating the tenant-farmer from the bondage of the soil, housing the urban
poor, etc.
Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati is a
paragon of the continuing program of our government towards social justice. The Burial
Assistance Program is a relief of pauperism, though not complete. The loss of a member of
a family is a painful experience, and it is more painful for the poor to be financially burdened
by such death. Resolution No. 60 vivifies the very words of the late President Ramon
Magsaysay 'those who have less in life, should have more in law." This decision, however
must not be taken as a precedent, or as an official go-signal for municipal governments to
embark on a philanthropic orgy of inordinate dole-outs for motives political or otherwise.
PREMISES CONSIDERED, and with the afore-mentioned caveat, this petition is hereby
GRANTED and the Commission on Audit's Decision No. 1159 is hereby SET ASIDE.
SO ORDERED.
Josef Elvin Campos
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Padilla, Bidin, Sarmiento, Griño-Aquino,
Medialdea, Regalado and Davide, Jr., JJ., concur.
Gutierrez, Jr. and Feliciano, JJ., are on leave.
Tano v. Socrates (G.R. No. 110249, 21 August 1997)

G.R. No. 110249 August 21, 1997
ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO TANO,
TEOCENES MIDELLO, ANGEL DE MESA, EULOGIO TREMOCHA, FELIPE ONGONION,
JR., ANDRES LINIJAN, ROBERT LIM, VIRGINIA LIM, FELIMON DE MESA, GENEROSO
ARAGON, TEODORICO ANDRE, ROMULO DEL ROSARIO, CHOLITO ANDRE, ERICK
MONTANO, ANDRES OLIVA, VITTORIO SALVADOR, LEOPOLDO ARAGON, RAFAEL
RIBA, ALEJANDRO LEONILA, JOSE DAMACINTO, RAMIRO MANAEG, RUBEN
MARGATE, ROBERTO REYES, DANILO PANGARUTAN, NOE GOLPAN, ESTANISLAO
ROMERO, NICANOR DOMINGO, ROLDAN TABANG, ADRIANO TABANG, FREDDIE
SACAMAY, MIGUEL TRIMOCHA, PACENCIO LABABIT, PABLO H. OMPAD,
CELESTINO A. ABANO, ALLAN ALMODAI, BILLY D. BARTOLAY, ALBINO D. LIQUE,
MECHOR J. LAYSON, MELANIE AMANTE, CLARO E. YATOC, MERGELDO B.
BALDEO, EDGAR M. ALMASETA, JOSELITO MANAEG, LIBERATO ANDRADA, JR.,
ROBERTO BERRY, RONALD VILLANUEVA, EDUARDO VALMORIA, WILFREDO
MENDOZA, NAPOLEON BABANGGA, ROBERTO TADEPA, RUBEN ASINGUA,
SILVERIO GABO, JERRY ROMERO, DAVID PANGGARUTAN, DANIEL
PANGGARUTAN, ROMEO AGAWIN, FERNANDO EQUIZ, DITO LEQUIZ, RONILO
MODERABLE, BENEDICTO TORRES, ROSITO A. VALDEZ, CRESENCIO A. SAYANG,
NICOMEDES S. ACOSTA, ERENEO A. SEGARINO, JR., WILFREDO A. RAUTO,
DIOSDADO A. ACOSTA, BONIFACIO G. SISMO, TACIO ALUBA, DANIEL B.
BATERZAL, ELISEO YBAÑEZ, DIOSDADO E. HANCHIC, EDDIE ESCALICAS,
ELEAZAR B. BATERZAL, DOMINADOR HALICHIC, ROOSEVELT RISMO-AN, ROBERT
C. MERCADER, TIRSO ARESGADO, DANIEL CHAVEZ, DANILO CHAVEZ, VICTOR
VILLAROEL, ERNESTO C. YBAÑEZ, ARMANDO T. SANTILLAN, RUDY S. SANTILLAN,
JODJEN ILUSTRISIMO, NESTOR SALANGRON, ALBERTO SALANGRON, ROGER L.
ROXAS, FRANCISCO T. ANTICANO, PASTOR SALANGRON, BIENVENIDO
SANTILLAN, GILBUENA LADDY, FIDEL BENJAMIN, JOVELITO BELGANO, HONEY
PARIOL, ANTONIO SALANGRON, NICASIO SALANGRON, & AIRLINE SHIPPERS
ASSOCIATION OF PALAWAN, petitioners,
vs.
HON. GOV. SALVADOR P. SOCRATES, MEMBERS OF SANGGUNIANG
PANLALAWIGAN OF PALAWAN, namely, VICE-GOVERNOR JOEL T. REYES, JOSE D.
ZABALA, ROSALINO R. ACOSTA, JOSELITO A. CADLAON, ANDRES R. BAACO,
NELSON P. PENEYRA, CIPRIANO C. BARROMA, CLARO E. ORDINARIO, ERNESTO
A. LLACUNA, RODOLFO C. FLORDELIZA, GILBERT S. BAACO, WINSTON G.
ARZAGA, NAPOLEON F. ORDONEZ and GIL P. ACOSTA, CITY MAYOR EDWARD
HAGEDORN, MEMBERS OF SANGGUNIANG PANLUNGSOD NG PUERTO PRINCESA,
ALL MEMBERS OF BANTAY DAGAT, MEMBERS OF PHILIPPINE NATIONAL POLICE
OF PALAWAN, PROVINCIAL AND CITY PROSECUTORS OF PALAWAN and PUERTO
PRINCESA CITY, and ALL JUDGES OF PALAWAN, REGIONAL, MUNICIPAL AND
METROPOLITAN, respondents.
DAVIDE, JR., J.:
Petitioners caption their petition as one for "Certiorari, Injunction With Preliminary and
Mandatory Injunction, with Prayer for Temporary Restraining Order" and pray that this
Court: (1) declare as unconstitutional: (a) Ordinance No. 15-92, dated 15 December 1992,
of the Sangguniang Panglungsod of Puerto Princesa; (b) Office Order No. 23, Series of
1993, dated 22 January 1993, issued by Acting City Mayor Amado L. Lucero of Puerto
Princesa City; and (c) Resolution No. 33, Ordinance No. 2, Series of 1993, dated 19
February 1993, of the Sangguniang Panlalawigan of Palawan; (2) enjoin the enforcement
thereof; and (3) restrain respondents Provincial and City Prosecutors of Palawan and
Puerto Princesa City and Judges of the Regional Trial Courts, Metropolitan Trial
Courts 1 and Municipal Circuit Trial Courts in Palawan from assuming jurisdiction over and
hearing cases concerning the violation of the Ordinances and of the Office Order.
More appropriately, the petition is, and shall be treated as, a special civil action
for certiorari and prohibition.
Josef Elvin Campos
The following is petitioners' summary of the factual antecedents giving rise to the petition:
1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City
enacted Ordinance No. 15-92 which took effect on January 1, 1993 entitled: "AN
ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER
OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1,
1998 AND PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER
PURPOSES THEREOF", the full text of which reads as follows:
Sec. 1. Title of the Ordinance. — This Ordinance is entitled: AN
ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND
LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1,
1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS,
PENALTIES AND FOR OTHER PURPOSES THEREOF.
Sec. 2. Purpose, Scope and Coverage. — To effectively free our City
Sea Waters from Cyanide and other Obnoxious substance[s], and
shall cover all persons and/or entities operating within and outside the
City of Puerto Princesa who is are (sic) directly or indirectly in the
business or shipment of live fish and lobster outside the City.
Sec. 3. Definition of terms. — For purpose of this Ordinance the
following are hereby defined:
A. SEA BASS — A kind of fish under the
family of Centropomidae, better known as
APAHAP;
B. CATFISH — A kind of fish under the
family of Plotosidae, better known as
HITO-HITO;
C. MUDFISH — A kind of fish under the
family of Orphicaphalisae better known as
DALAG;
D. ALL LIVE FISH — All alive, breathing
not necessarily moving of all specie[s]
use[d] for food and for aquarium
purposes.
E. LIVE LOBSTER — Several relatively,
large marine crusteceans [sic] of the
genus Homarus that are alive and
breathing not necessarily moving.
Sec. 4. It shall be unlawful [for] any person or any business enterprise
or company to ship out from Puerto Princesa City to any point of
destination either via aircraft or seacraft of any live fish and lobster
except SEA BASS, CATFISH, MUDFISH, AND MILKFISH FRIES.
Sec. 5. Penalty Clause. — Any person/s and or business entity
violating this Ordinance shall be penalized with a fine of not more than
P5,000.00 or imprisonment of not more than twelve (12) months,
cancellation of their permit to do business in the City of Puerto
Princesa or all of the herein stated penalties, upon the discretion of the
court.
Sec. 6. If the owner and/or operator of the establishment found
violating the provisions of this ordinance is a corporation or a
partnership, the penalty prescribed in Section 5 hereof shall be
imposed upon its president and/or General Manager or Managing
Partner and/or Manager, as the case maybe [sic].
Sec. 7. Any existing ordinance or any provision of any ordinance
inconsistent to [sic] this ordinance is deemed repealed.
Sec. 8. This Ordinance shall take effect on January 1, 1993.
SO ORDAINED.
xxx xxx xxx
2. To implement said city ordinance, then Acting City Mayor Amado L. Lucero issued
Office Order No. 23, Series of 1993 dated January 22, 1993 which reads as follows:
In the interest of public service and for purposes of City Ordinance No. PD 426-14-
74, otherwise known as "AN ORDINANCE REQUIRING ANY PERSON ENGAGED
OR INTENDING TO ENGAGE IN ANY BUSINESS, TRADE, OCCUPATION,
CALLING OR PROFESSION OR HAVING IN HIS POSSESSION ANY OF THE
ARTICLES FOR WHICH A PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST
Josef Elvin Campos
A MAYOR'S PERMIT" and "City Ordinance No. 15-92, AN ORDINANCE BANNING
THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO
PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998, you are hereby
authorized and directed to check or conduct necessary inspections on cargoes
containing live fish and lobster being shipped out from the Puerto Princesa Airport,
Puerto Princesa Wharf or at any port within the jurisdiction of the City to any point of
destinations [sic] either via aircraft or seacraft.
The purpose of the inspection is to ascertain whether the shipper possessed the
required Mayor's Permit issued by this Office and the shipment is covered by invoice
or clearance issued by the local office of the Bureau of Fisheries and Aquatic
Resources and as to compliance with all other existing rules and regulations on the
matter.
Any cargo containing live fish and lobster without the required documents as stated
herein must be held for proper disposition.
In the pursuit of this Order, you are hereby authorized to coordinate with the PAL
Manager, the PPA Manager, the local PNP Station and other offices concerned for
the needed support and cooperation. Further, that the usual courtesy and diplomacy
must be observed at all times in the conduct of the inspection.
Please be guided accordingly.
xxx xxx xxx
3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial Government of
Palawan enacted Resolution No. 33 entitled: "A RESOLUTION PROHIBITING THE
CATCHING, GATHERING, POSSESSING, BUYING, SELLING AND SHIPMENT OF
LIVE MARINE CORAL DWELLING AQUATIC ORGANISMS, TO WIT:
FAMILY: SCARIDAE (MAMENG), EPINE PHELUS
FASCIATUS (SUNO). CROMILEPTES ALTIVELIS (PANTHER OR SENORITA),
LOBSTER BELOW 200 GRAMS AND SPAWNING, TRIDACNA
GIGAS (TAKLOBO), PINCTADA MARGARITEFERA (MOTHER PEARL, OYSTERS,
GIANT CLAMS AND OTHER SPECIES), PENAEUS MONODON (TIGER PRAWN-
BREEDER SIZE OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN
GROUPER) AND FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A
PERIOD FIVE (5) YEARS IN AND COMING FROM PALAWAN WATERS", the full
text of which reads as follows:
WHEREAS, scientific and factual researches [sic] and studies disclose
that only five (5) percent of the corals of our province remain to be in
excellent condition as [a] habitat of marine coral dwelling aquatic
organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation
of the corals of our province were principally due to illegal fishing
activities like dynamite fishing, sodium cyanide fishing, use of other
obnoxious substances and other related activities;
WHEREAS, there is an imperative and urgent need to protect and
preserve the existence of the remaining excellent corals and allow the
devastated ones to reinvigorate and regenerate themselves into vitality
within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160
otherwise known as the Local Government Code of 1991 empowers
the Sangguniang Panlalawigan to protect the environment and impose
appropriate penalties [upon] acts which endanger the environment
such as dynamite fishing and other forms of destructive fishing, among
others.
NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and
upon unanimous decision of all the members present;
Be it resolved as it is hereby resolved, to approve Resolution No. 33,
Series of 1993 of the Sangguniang Panlalawigan and to enact
Ordinance No. 2 for the purpose, to wit:
ORDINANCE NO. 2
Series of 1993
BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION
ASSEMBLED:
Sec. 1. TITLE — This Ordinance shall be known as an "Ordinance
Prohibiting the catching, gathering, possessing, buying, selling and
shipment of live marine coral dwelling aquatic organisms, to wit: 1.
Josef Elvin Campos
Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno) 3.
Cromileptes altivelis (Panther or Senorita), lobster below 200 grams
and spawning), 4. Tridacna Gigas (Taklobo), 5. Pinctada
Margaretefera (Mother Pearl, Oysters, Giant Clams and other
species), 6. Penaeus Monodon (Tiger Prawn-breeder size or mother),
7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family:
Balistidae (T[r]opical Aquarium Fishes) for a period of five (5) years in
and coming from Palawan Waters.
Sec. II. PRELIMINARY CONSIDERATIONS
1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the
state that the territorial and political subdivisions of the State shall
enjoy genuine and meaningful local autonomy to enable them to attain
their fullest development as self-reliant communities and make them
more effective partners in the attainment of national goals. Toward this
end, the State shall provide for [a] more responsive and accountable
local government structure instituted through a system of
decentralization whereby local government units shall be given more
powers, authority, responsibilities and resources.
2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local
Government Unit shall be liberally interpreted in its favor, and in case
of doubt, any question thereon shall be resolved in favor of devolution
of powers and of the lower government units. "Any fair and reasonable
doubts as to the existence of the power shall be interpreted in favor of
the Local Government Unit concerned."
3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code
shall be liberally interpreted to give more powers to local government
units in accelerating economic development and upgrading the quality
of life for the people in the community.
4. Sec. 16 (R.A. 7160). General Welfare. — Every local government
unit shall exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance; and those which
are essential to the promotion of the general welfare.
Sec. III. DECLARATION OF POLICY. — It is hereby declared to be
the policy of the Province of Palawan to protect and conserve the
marine resources of Palawan not only for the greatest good of the
majority of the present generation but with [the] proper perspective
and consideration of [sic] their prosperity, and to attain this end, the
Sangguniang Panlalawigan henceforth declares that is (sic) shall be
unlawful for any person or any business entity to engage in catching,
gathering, possessing, buying, selling and shipment of live marine
coral dwelling aquatic organisms as enumerated in Section 1 hereof in
and coming out of Palawan Waters for a period of five (5) years;
Sec. IV. PENALTY CLAUSE. — Any person and/or business entity
violating this Ordinance shall be penalized with a fine of not more than
Five Thousand Pesos (P5,000.00), Philippine Currency, and/or
imprisonment of six (6) months to twelve (12) months and confiscation
and forfeiture of paraphernalias [sic] and equipment in favor of the
government at the discretion of the Court;
Sec. V. SEPARABILITY CLAUSE. — If for any reason, a Section or
provision of this Ordinance shall be held as unconditional [sic] or
invalid, it shall not affect the other provisions hereof.
Sec. VI. REPEALING CLAUSE. — Any existing Ordinance or a
provision of any ordinance inconsistent herewith is deemed modified,
amended or repealed.
Sec. VII. EFFECTIVITY — This Ordinance shall take effect ten (10)
days after its publication.
SO ORDAINED.
xxx xxx xxx

4. The respondents implemented the said ordinances, Annexes "A" and "C" hereof
thereby depriving all the fishermen of the whole province of Palawan and the City of
Puerto Princesa of their only means of livelihood and the petitioners Airline Shippers
Josef Elvin Campos
Association of Palawan and other marine merchants from performing their lawful
occupation and trade;
5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa,
Eulogio Tremocha, and Felipe Ongonion, Jr. were even charged criminally under
criminal case no. 93-05-C in the 1st Municipal Circuit Trial Court of Cuyo-Agutaya-
Magsaysay, an original carbon copy of the criminal complaint dated April 12, 1993 is
hereto attached as Annex "D"; while xerox copies are attached as Annex "D" to the
copies of the petition;
6. Petitioners Robert Lim and Virginia Lim, on the other hand, were charged by the
respondent PNP with the respondent City Prosecutor of Puerto Princess City, a
xerox copy of the complaint is hereto attached as Annex "E";
Without seeking redress from the concerned local government units, prosecutor's office and
courts, petitioners directly invoked our original jurisdiction by filing this petition on 4 June
1993. In sum, petitioners contend that:
First, the Ordinances deprived them of due process of law, their livelihood, and unduly
restricted them from the practice of their trade, in violation of Section 2, Article XII and
Sections 2 and 7 of Article XIII of the 1987 Constitution.
Second, Office Order No. 23 contained no regulation nor condition under which the Mayor's
permit could be granted or denied; in other words, the Mayor had the absolute authority to
determine whether or not to issue the permit.
Third, as Ordinance No. 2 of the Province of Palawan "altogether prohibited the catching,
gathering, possession, buying, selling and shipping of live marine coral dwelling organisms,
without any distinction whether it was caught or gathered through lawful fishing method," the
Ordinance took away the right of petitioners-fishermen to earn their livelihood in lawful
ways; and insofar as petitioners-members of Airline Shippers Association are concerned,
they were unduly prevented from pursuing their vocation and entering "into contracts which
are proper, necessary, and essential to carry out their business endeavors to a successful
conclusion."
Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the criminal
cases based thereon against petitioners Tano and the others have to be dismissed.
In the Resolution of 15 June 1993 we required respondents to comment on the petition, and
furnished the Office of the Solicitor General with a copy thereof.
In their comment filed on 13 August 1993, public respondents Governor Socrates and
Members of the Sangguniang Panlalawigan of Palawan defended the validity of Ordinance
No. 2, Series of 1993, as a valid exercise of the Provincial Government's power under the
general welfare clause (Section 16 of the Local Government Code of 1991 [hereafter,
LGC]), and its specific power to protect the environment and impose appropriate penalties
for acts which endanger the environment, such as dynamite fishing and other forms of
destructive fishing under Section 447 (a) (1) (vi), Section 458 (a) (1) (vi), and Section 468
(a) (1) (vi), of the LGC. They claimed that in the exercise of such powers, the Province of
Palawan had "the right and responsibility . . . to insure that the remaining coral reefs, where
fish dwells [sic], within its territory remain healthy for the future generation." The Ordinance,
they further asserted, covered only live marine coral dwelling aquatic organisms which were
enumerated in the ordinance and excluded other kinds of live marine aquatic organisms not
dwelling in coral reefs; besides the prohibition was for only five (5) years to protect and
preserve the pristine coral and allow those damaged to regenerate.
Aforementioned respondents likewise maintained that there was no violation of the due
process and equal protection clauses of the Constitution. As to the former, public hearings
were conducted before the enactment of the Ordinance which, undoubtedly, had a lawful
purpose and employed reasonable means; while as to the latter, a substantial distinction
existed "between a fisherman who catches live fish with the intention of selling it live, and a
fisherman who catches live fish with no intention at all of selling it live," i.e., "the former uses
sodium cyanide while the latter does not." Further, the Ordinance applied equally to all
those belonging to one class.
On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance of a
Temporary Restraining Order, claiming that despite the pendency of this case, Branch 50 of
the Regional Trial Court of Palawan was bent on proceeding with Criminal Case No. 11223
Josef Elvin Campos
against petitioners Danilo Tano, Alfredo Tano, Eulogio Tremocha, Romualdo Tano,
Baldomero Tano, Andres Linijan and Angel de Mesa for violation of Ordinance No. 2 of the
Sangguniang Panlalawigan of Palawan. Acting on said plea, we issued on 11 November
1993 a temporary restraining order directing Judge Angel Miclat of said court to cease and
desist from proceeding with the arraignment and pre-trial of Criminal Case No. 11223.
On 12 July 1994, we excused the Office of the Solicitor General from filing a comment,
considering that as claimed by said office in its Manifestation of 28 June 1994, respondents
were already represented by counsel.
The rest of the respondents did not file any comment on the petition.
In the resolution of 15 September 1994, we resolved to consider the comment on the

petition as the Answer, gave due course to the petition and required the parties to submit
their respective memoranda. 2
On 22 April 1997 we ordered impleaded as party respondents the Department of Agriculture

and the Bureau of Fisheries and Aquatic Resources and required the Office of the Solicitor
General to comment on their behalf. But in light of the latter's motion of 9 July 1997 for an
extension of time to file the comment which would only result in further delay, we dispensed
with said comment.
After due deliberation on the pleadings filed, we resolved to dismiss this petition for want of
merit, and on 22 July 1997, assigned it to the ponente to write the opinion of the Court.
I
There are actually two sets of petitioners in this case. The first is composed of Alfredo Tano,
Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes Midello, Angel de Mesa, Eulogio
Tremocha, Felipe Ongonion, Jr., Andres Linijan, and Felimon de Mesa, who were criminally
charged with violating Sangguniang Panlalawigan Resolution No. 33 and Ordinance No. 2,
Series of 1993, of the Province of Palawan, in Criminal Case No. 93-05-C of the 1st
Municipal Circuit Trial Court (MCTC) of Palawan; 3 and Robert Lim and Virginia Lim who
were charged with violating City Ordinance No. 15-92 of Puerto Princesa City and
Ordinance No. 2, Series of 1993, of the Province of Palawan before the Office of the City
Prosecutor of Puerto Princesa. 4 All of them, with the exception of Teocenes Midello, Felipe
Ongonion, Jr., Felimon de Mesa, Robert Lim and Virginia Lim, are likewise the accused in
Criminal Case No. 11223 for the violation of Ordinance No. 2 of the Sangguniang
Panlalawigan of Palawan, pending before Branch 50 of the Regional Trial Court of
Palawan. 5
The second set of petitioners is composed of the rest of the petitioners numbering seventy-
seven (77), all of whom, except the Airline Shippers Association of Palawan — an alleged
private association of several marine merchants — are natural persons who claim to be
fishermen.
The primary interest of the first set of petitioners is, of course, to prevent the prosecution,
trial and determination of the criminal cases until the constitutionality or legality of the
Ordinances they allegedly violated shall have been resolved. The second set of petitioners
merely claim that being fishermen or marine merchants, they would be adversely affected
by the ordinance's.
As to the first set of petitioners, this special civil for certiorari must fail on the ground of
prematurity amounting to a lack of cause of action. There is no showing that said
petitioners, as the accused in the criminal cases, have filed motions to quash the
informations therein and that the same were denied. The ground available for such motions
is that the facts charged therein do not constitute an offense because the ordinances in
question are unconstitutional. 6 It cannot then be said that the lower courts acted without or
in excess of jurisdiction or with grave abuse of discretion to justify recourse to the
extraordinary remedy of certiorari or prohibition. It must further be stressed that even if
petitioners did file motions to quash, the denial thereof would not forthwith give rise to a
cause of action under Rule 65 of the Rules of Court. The general rule is that where a motion
to quash is denied, the remedy therefrom is not certiorari, but for the party aggrieved
thereby to go to trial without prejudice to reiterating special defenses involved in said
motion, and if, after trial on the merits an adverse decision is rendered, to appeal therefrom
in the manner authorized by law. 7 And, even where in an exceptional circumstance such
denial may be the subject of a special civil action for certiorari, a motion for reconsideration
Josef Elvin Campos
must have to be filed to allow the court concerned an opportunity to correct its errors, unless
such motion may be dispensed with because of existing exceptional
circumstances. 8 Finally, even if a motion for reconsideration has been filed and denied, the
remedy under Rule 65 is still unavailable absent any showing of the grounds provided for in
Section 1 thereof. 9 For obvious reasons, the petition at bar does not, and could not have,
alleged any of such grounds.
As to the second set of petitioners, the instant petition is obviously one for DECLARATORY
RELIEF, i.e., for a declaration that the Ordinances in question are a "nullity . . . for being
unconstitutional."10 As such, their petition must likewise fail, as this Court is not possessed
of original jurisdiction over petitions for declaratory relief even if only questions of law are
involved,11 it being settled that the Court merely exercises appellate jurisdiction over such
petitions.12
II
Even granting arguendo that the first set of petitioners have a cause of action ripe for the
extraordinary writ of certiorari, there is here a clear disregard of the hierarchy of courts, and
no special and important reason or exceptional and compelling circumstance has been
adduced why direct recourse to us should be allowed. While we have concurrent jurisdiction
with Regional Trial courts and with the Court of Appeals to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence
gives petitioners no unrestricted freedom of choice of court forum, so we held in People
v. Cuaresma.13
This concurrence of jurisdiction is not . . . to be taken as according to parties seeking

any of the writs an absolute unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all hierarchy of courts. That
hierarchy is determinative of the venue of appeals, and should also serve as a
general determinant of the appropriate forum for petitions for the extraordinary writs.
A becoming regard for that judicial hierarchy most certainly indicates that petitions
for the issuance of extraordinary writs against first level ("inferior") courts should be
filed with the Regional Trial Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue
these writs should be allowed only when there are special and important reasons
therefor, clearly and specifically set out in the petition. This is established policy. It is
a policy necessary to prevent inordinate demands upon the Court's time and
attention which are better devoted to those matters within its exclusive jurisdiction,
and to prevent further over-crowding of the Court's docket. . . .
The Court feels the need to reaffirm that policy at this time, and to enjoin strict
adherence thereto in the light of what it perceives to be a growing tendency on the
part of litigants and lawyers to have their applications for the so-called extraordinary
writs, and sometimes even their appeals, passed upon and adjudicated directly and
immediately by the highest tribunal of the land. . . .
In Santiago v. Vasquez,14 this Court forcefully expressed that the propensity of litigants and
lawyers to disregard the hierarchy of courts must be put to a halt, not only because of the
imposition upon the precious time of this Court, but also because of the inevitable and
resultant delay, intended or otherwise, in the adjudication of the case which often has to be
remanded or referred to the lower court, the proper forum under the rules of procedure, or
as better equipped to resolve the issues since this Court is not a trier of facts. We reiterated
"the judicial policy 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 calling for the exercise of [its]
primary jurisdiction."
III
Notwithstanding the foregoing procedural obstacles against the first set of petitioners, we
opt to resolve this case on its merits considering that the lifetime of the challenged
Ordinances is about to end. Ordinance No. 15-92 of the City of Puerto Princesa is effective
only up to 1 January 1998, while Ordinance No. 2 of the Province of Palawan, enacted on
19 February 1993, is effective for only five (5) years. Besides, these Ordinances were
undoubtedly enacted in the exercise of powers under the new LGC relative to the protection
Josef Elvin Campos
and preservation of the environment and are thus novel and of paramount importance. No
further delay then may be allowed in the resolution of the issues raised.
It is of course settled that laws (including ordinances enacted by local government units)
enjoy the presumption of constitutionality. 15 To overthrow this presumption, there must be a
clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative
contradiction. In short, the conflict with the Constitution must be shown beyond reasonable
doubt.16 Where doubt exists, even if well-founded, there can be no finding of
unconstitutionality. To doubt is to sustain. 17
After a scrutiny of the challenged Ordinances and the provisions of the Constitution
petitioners claim to have been violated, we find petitioners' contentions baseless and so
hold that the former do not suffer from any infirmity, both under the Constitution and
applicable laws.
Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article XIII of the
Constitution as having been transgressed by the Ordinances.
The pertinent portion of Section 2 of Article XII reads:

Sec. 2. . . .
The State shall protect the nation's marine wealth in its archipelagic waters, territorial
sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by
Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and lagoons.
Sections 2 and 7 of Article XIII provide:
Sec. 2. The promotion of social justice shall include the commitment to create
economic opportunities based on freedom of initiative and self-reliance.
xxx xxx xxx
Sec. 7. The State shall protect the rights of subsistence fishermen, especially
of local communities, to the preferential use of the communal marine and
fishing resources, both inland and offshore. It shall provide support to such
fishermen through appropriate technology and research, adequate financial,
production, and marketing assistance, and other services. The State shall
also protect, develop, and conserve such resources. The protection shall
extend to offshore fishing grounds of subsistence fishermen against foreign
intrusion. Fishworkers shall receive a just share from their labor in the
utilization of marine and fishing resources.
There is absolutely no showing that any of the petitioners qualifies as a subsistence
or marginal fisherman. In their petition, petitioner Airline Shippers Association of
Palawan is self-described as "a private association composed of Marine Merchants;"
petitioners Robert Lim and Virginia Lim, as "merchants;" while the rest of the
petitioners claim to be "fishermen," without any qualification, however, as to their
status.
Since the Constitution does not specifically provide a definition of the terms
"subsistence" or "marginal" fishermen, 18 they should be construed in their general
and ordinary sense. A marginal fisherman is an individual engaged in fishing whose
margin of return or reward in his harvest of fish as measured by existing price levels
is barely sufficient to yield a profit or cover the cost of gathering the fish, 19 while a
subsistence fisherman is one whose catch yields but the irreducible minimum for his
livelihood.20 Section 131(p) of the LGC (R.A. No. 7160) defines a marginal farmer or
fisherman as "an individual engaged in subsistence farming or fishing which shall be
limited to the sale, barter or exchange of agricultural or marine products produced by
himself and his immediate family." It bears repeating that nothing in the record
supports a finding that any petitioner falls within these definitions.
Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence
fishermen, but to lay stress on the duty of the State to protect the nation's marine
wealth. What the provision merely recognizes is that the State may allow, by law,
cooperative fish farming, with priority to subsistence fishermen and fishworkers in
rivers, lakes, bays and lagoons. Our survey of the statute books reveals that the only
provision of law which speaks of a preferential right of marginal fishermen is Section
149 of the LGC, which pertinently provides:
Josef Elvin Campos
Sec. 149. Fishery Rentals, Fees and Charges. — . . .
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals,
oyster, mussels or other aquatic beds or bangus
fry areas, within a definite zone of the municipal
waters, as determined by it: Provided, however,
That duly registered organizations and
cooperatives of marginal fishermen shall have
the preferential right to such fishery privileges . . .
.
In a Joint Administrative Order No. 3 dated 25 April 1996, the Secretary of the
Department of Agriculture and the Secretary of the Department of Interior and Local
Government prescribed guidelines concerning the preferential treatment of small
fisherfolk relative to the fishery right mentioned in Section 149. This case, however,
does not involve such fishery right.
Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and
fishing resources, but of their protection, development and conservation. As
hereafter shown, the ordinances in question are meant precisely to protect and
conserve our marine resources to the end that their enjoyment may be guaranteed
not only for the present generation, but also for the generations to come.
The so-called "preferential right" of subsistence or marginal fishermen to the use of
marine resources is not at all absolute. In accordance with the Regalian Doctrine,
marine resources belong to the State, and, pursuant to the first paragraph of Section
2, Article XII of the Constitution, their "exploration, development and utilization . . .
shall be under the full control and supervision of the State." Moreover, their
mandated protection, development and conservation as necessarily recognized by
the framers of the Constitution, imply certain restrictions on whatever right of
enjoyment there may be in favor of anyone. Thus, as to the curtailment of the
preferential treatment of marginal fishermen, the following exchange between
Commissioner Francisco Rodrigo and Commissioner Jose F.S. Bengzon, Jr., took
place at the plenary session of the Constitutional Commission:
MR. RODRIGO:
Let us discuss the implementation of this because I would not
raise the hopes of our people, and afterwards fail in the
implementation. How will this be implemented? Will there be a
licensing or giving of permits so that government officials will
know that one is really a marginal fisherman? Or if policeman
say that a person is not a marginal fisherman, he can show his
permit, to prove that indeed he is one.
MR. BENGZON:
Certainly, there will be some mode of licensing insofar as this is
concerned and this particular question could be tackled when
we discuss the Article on Local Governments — whether we
will leave to the local governments or to Congress on how
these things will be implemented. But certainly, I think our
congressmen and our local officials will not be bereft of ideas
on how to implement this mandate.
xxx xxx xxx
MR. RODRIGO:
So, once one is licensed as a marginal fisherman, he can go
anywhere in the Philippines and fish in any fishing grounds.
MR. BENGZON:
Subject to whatever rules and regulations and local laws that
may be passed, may be existing or will be passed.21 (emphasis
supplied)
What must likewise be borne in mind is the state policy enshrined in the Constitution
regarding the duty of the State to protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature. 22 On this score, in Oposa v. Factoran, 23 this Court declared:
Josef Elvin Campos
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles the State Policies and not under the Bill of Rights, it
does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-
perpetuation — aptly and fittingly stressed by the petitioners — the
advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it
is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when all else would be
lost not only for the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it a correlative duty
to refrain from impairing the environment. . . .
The LGC provisions invoked by private respondents merely seek to give flesh and
blood to the right of the people to a balanced and healthful ecology. In fact, the
General Welfare Clause, expressly mentions this right:
Sec. 16. General Welfare. — Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units
shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants. (emphasis supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare
provisions of the LGC "shall be liberally interpreted to give more powers to the local
government units in accelerating economic development and upgrading the quality of
life for the people of the community."
The LGC vests municipalities with the power to grant fishery privileges in municipal
waters and impose rentals, fees or charges therefor; to penalize, by appropriate
ordinances, the use of explosives, noxious or poisonous substances,
electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any
violation of the provisions of applicable fishery laws. 24 Further, the sangguniang
bayan, the sangguniang panlungsod and the sangguniang panlalawigan are directed
to enact ordinances for the general welfare of the municipality and its inhabitants,
which shall include, inter alia, ordinances that "[p]rotect the environment and impose
appropriate penalties for acts which endanger the environment such as dynamite
fishing and other forms of destructive fishing . . . and such other activities which
result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological
imbalance."25
Finally, the centerpiece of LGC is the system of decentralization 26 as expressly

mandated by the Constitution.27 Indispensable to decentralization is devolution and
the LGC expressly provides that "[a]ny provision on a power of a local government
unit shall be liberally interpreted in its favor, and in case of doubt, any question
thereon shall be resolved in favor of devolution of powers and of the lower local
government unit. Any fair and reasonable doubt as to the existence of the power
shall be interpreted in favor of the local government unit concerned." 28 Devolution
Josef Elvin Campos
refers to the act by which the National Government confers power and authority
upon the various local government units to perform specific functions and
responsibilities.29
One of the devolved powers enumerated in the section of the LGC on devolution is
the enforcement of fishery laws in municipal waters including the conservation of
mangroves.30 This necessarily includes the enactment of ordinances to effectively
carry out such fishery laws within the municipal waters.
The term "municipal waters," in turn, includes not only streams, lakes, and tidal
waters within the municipality, not being the subject of private ownership and not
comprised within the national parks, public forest, timber lands, forest reserves, or
fishery reserves, but also marine waters included between two lines drawn
perpendicularly to the general coastline from points where the boundary lines of the
municipality or city touch the sea at low tide and a third line parallel with the general
coastline and fifteen kilometers fromit. 31
Under P.D. No. 704, the marine waters included in municipal waters is limited to
three nautical miles from the general coastline using the above perpendicular lines
and a third parallel line.
These "fishery laws" which local government units may enforce under Section 17(b)
(2)(i) in municipal waters include: (1) P.D. No. 704; (2) P.D. No. 1015 which, inter
alia, authorizes the establishment of a "closed season" in any Philippine water if
necessary for conservation or ecological purposes; (3) P.D. No. 1219 which provides
for the exploration, exploitation, utilization and conservation of coral resources; (4)
R.A. No. 5474, as amended by B.P. Blg. 58, which makes it unlawful for any person,
association or corporation to catch or cause to be caught, sell, offer to sell, purchase,
or have in possession any of the fish specie called gobiidae or "ipon" during closed
season; and (5) R.A. No. 6451 which prohibits and punishes electrofishing, as well
as various issuances of the BFAR.
To those specifically devolved insofar as the control and regulation of fishing in

municipal waters and the protection of its marine environment are concerned, must
be added the following:
1. Issuance of permits to construct fish cages within municipal
waters;
2. Issuance of permits to gather aquarium fishes within
municipal waters;
3. Issuance of permits to gather kapis shells within municipal
waters;
4. Issuance of permits to gather/culture shelled mollusks within
municipal waters;
5. Issuance of licenses to establish seaweed farms within
municipal waters;
6. Issuance of licenses to establish culture pearls within
municipal waters;
7. Issuance of auxiliary invoice to transport fish and fishery
products; and
8. Establishment of "closed season" in municipal waters.
These functions are covered in the Memorandum of Agreement of 5 April 1994

between the Department of Agriculture and the Department of Interior and Local
Government.
In light then of the principles of decentralization and devolution enshrined in the LGC
and the powers granted therein to local government units under Section 16 (the
General Welfare Clause), and under Sections 149, 447(a) (1) (vi), 458 (a) (1) (vi) and
468 (a) (1) (vi), which unquestionably involve the exercise of police power, the
validity of the questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full support under R.A.
No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for Palawan
Act, approved on 19 June 1992. This statute adopts a "comprehensive framework for
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the sustainable development of Palawan compatible with protecting and enhancing
the natural resources and endangered environment of the province," which "shall
serve to guide the local government of Palawan and the government agencies
concerned in the formulation and implementation of plans, programs and projects
affecting said province."32
At this time then, it would be appropriate to determine the relation between the
assailed Ordinances and the aforesaid powers of the Sangguniang Panlungsod of
the City of Puerto Princesa and the Sangguniang Panlalawigan of the Province of
Palawan to protect the environment. To begin, we ascertain the purpose of the
Ordinances as set forth in the statement of purposes or declaration of policies
quoted earlier.
It is clear to the Court that both Ordinances have two principal objectives or
purposes: (1) to establish a "closed season" for the species of fish or aquatic animals
covered therein for a period of five years; and (2) to protect the coral in the marine
waters of the City of Puerto Princesa and the Province of Palawan from further
destruction due to illegal fishing activities.
The accomplishment of the first objective is well within the devolved power to
enforce fishery laws in municipal waters, such as P.D. No. 1015, which allows the
establishment of "closed seasons." The devolution of such power has been
expressly confirmed in the Memorandum of Agreement of 5 April 1994 between the
Department of Agriculture and the Department of Interior and Local Government.
The realization of the second objective clearly falls within both the general welfare
clause of the LGC and the express mandate thereunder to cities and provinces to
protect the environment and impose appropriate penalties for acts which endanger
the environment.33
The destruction of coral reefs results in serious, if not irreparable, ecological

imbalance, for coral reefs are among nature's life-support systems. 34 They collect,
retain and recycle nutrients for adjacent nearshore areas such as mangroves,
seagrass beds, and reef flats; provide food for marine plants and animals; and serve
as a protective shelter for aquatic organisms. 35 It is said that "[e]cologically, the reefs
are to the oceans what forests are to continents: they are shelter and breeding
grounds for fish and plant species that will disappear without them." 36
The prohibition against catching live fish stems, in part, from the modern
phenomenon of live-fish trade which entails the catching of so-called exotic species
of tropical fish, not only for aquarium use in the West, but also for "the market for live
banquet fish [which] is virtually insatiable in ever more affluent Asia. 37 These exotic
species are coral-dwellers, and fishermen catch them by "diving in shallow water
with corraline habitats and squirting sodium cyanide poison at passing fish directly or
onto coral crevices; once affected the fish are immobilized [merely stunned] and then
scooped by hand."38 The diver then surfaces and dumps his catch into a submerged
net attached to the skiff. Twenty minutes later, the fish can swim normally. Back on
shore, they are placed in holding pens, and within a few weeks, they expel the
cyanide from their system and are ready to be hauled. They are then placed in
saltwater tanks or packaged in plastic bags filled with seawater for shipment by air
freight to major markets for live food fish. 39 While the fish are meant to survive, the
opposite holds true for their former home as "[a]fter the fisherman squirts the
cyanide, the first thing to perish is the reef algae, on which fish feed. Days later, the
living coral starts to expire. Soon the reef loses its function as habitat for the fish,
which eat both the algae and invertebrates that cling to the coral. The reef becomes
an underwater graveyard, its skeletal remains brittle, bleached of all color and
vulnerable to erosion from the pounding of the waves." 40 It has been found that
cyanide fishing kills most hard and soft corals within three months of repeated
application.41
The nexus then between the activities barred by Ordinance No. 15-92 of the City of
Puerto Princesa and the prohibited acts provided in Ordinance No. 2, Series of 1993
of the Province of Palawan, on one hand, and the use of sodium cyanide, on the
other, is painfully obvious. In sum, the public purpose and reasonableness of the
Ordinances may not then be controverted.
Josef Elvin Campos
As to Office Order No. 23, Series of 1993, issued by Acting City Mayor Amado L.
Lucero of the City of Puerto Princesa, we find nothing therein violative of any
constitutional or statutory provision. The Order refers to the implementation of the
challenged ordinance and is not the Mayor's Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of
authority on the part of the Sangguniang Panglungsod of Puerto Princesa to enact
Ordinance No. 15, Series of 1992, on the theory that the subject thereof is within the
jurisdiction and responsibility of the Bureau of Fisheries and Aquatic Resources
(BFAR) under P.D. No. 704, otherwise known as the Fisheries Decree of 1975; and
that, in any event, the Ordinance is unenforceable for lack of approval by the
Secretary of the Department of Natural Resources (DNR), likewise in accordance
with P.D. No. 704.
The majority is unable to accommodate this view. The jurisdiction and responsibility
of the BFAR under P.D. No. 704, over the management, conservation, development,
protection, utilization and disposition of all fishery and aquatic resources of the
country is not all-encompassing. First, Section 4 thereof excludes from such
jurisdiction and responsibility municipal waters, which shall be under the municipal or
city government concerned, except insofar as fishpens and seaweed culture in
municipal centers are concerned. This section provides, however, that all municipal
or city ordinances and resolutions affecting fishing and fisheries and any disposition
thereunder shall be submitted to the Secretary of the Department of Natural
Resources for appropriate action and shall have full force and effect only upon his
approval.42
Second, it must at once be pointed out that the BFAR is no longer under the
Department of Natural Resources (now Department of Environment and Natural
Resources). Executive Order No. 967 of 30 June 1984 transferred the BFAR from
the control and supervision of the Minister (formerly Secretary) Of Natural Resources
to the Ministry of Agriculture and Food (MAF) and converted it into a mere staff
agency thereof, integrating its functions with the regional offices of the MAF.
In Executive Order No. 116 of 30 January 1987, which reorganized the MAF, the
BFAR was retained as an attached agency of the MAF. And under the Administrative
Code of 1987,43 the BFAR is placed under the Title concerning the Department of
Agriculture.44
Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto
Princesa is invalid or unenforceable because it was not approved by the Secretary of
the DENR. If at all, the approval that should be sought would be that of the Secretary
of the Department of Agriculture. However, the requirement of approval by the
Secretary of the Department of Agriculture (not DENR) of municipal ordinances
affecting fishing and fisheries in municipal waters has been dispensed with in view of
the following reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends
Sections 16 and 29 of P.D. No. 704 45 insofar as they are inconsistent with the
provisions of the LGC.
(2) As discussed earlier, under the general welfare clause of the LGC, local
government units have the power, inter alia, to enact ordinances to enhance the right
of the people to a balanced ecology. It likewise specifically vests municipalities with
the power to grant fishery privileges in municipal waters, and impose rentals, fees or
charges therefor; to penalize, by appropriate ordinances, the use of explosives,
noxious or poisonous substances, electricity, muro-ami, and other deleterious
methods of fishing; and to prosecute any violation of the provisions of applicable
fishery laws.46 Finally, it imposes upon the sangguniang bayan, the sangguniang
panlungsod, and the sangguniang panlalawigan the duty to enact ordinances to
"[p]rotect the environment and impose appropriate penalties for acts which endanger
the environment such as dynamite fishing and other forms of destructive fishing . . .
and such other activities which result in pollution, acceleration of eutrophication of
rivers and lakes or of ecological imbalance." 47
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In closing, we commend the Sangguniang Panlungsod of the City of Puerto Princesa
and Sangguniang Panlalawigan of the Province of Palawan for exercising the
requisite political will to enact urgently needed legislation to protect and enhance the
marine environment, thereby sharing in the herculean task of arresting the tide of
ecological destruction. We hope that other local government units shall now be
roused from their lethargy and adopt a more vigilant stand in the battle against the
decimation of our legacy to future generations. At this time, the repercussions of any
further delay in their response may prove disastrous, if not, irreversible.
WHEREFORE, the instant petition is DISMISSED for lack of merit and the temporary
restraining order issued on 11 November 1993 is LIFTED.
SO ORDERED.
Narvasa, C.J., Padilla, Romero, Melo, Vitug, Francisco Panganiban and Torres, Jr., JJ.,
concur.
Regalado, J., is on leave.
Separate Opinions
MENDOZA, J., concurring:
I fully concur in the opinion of the Court written by Justice Davide. I write separately
to emphasize two points which I believe are important. The first is the need to uphold
the presumption of validity of the ordinances in this case in view of the total absence
of evidence to undermine their factual basis. The second is the need not to allow a
shortcircuiting of the normal process of adjudication on the mere plea that unless we
take cognizance of petitions like this, by-passing the trial courts, alleged violations of
constitutional rights will be left unprotected, when the matter can very well be looked
into by trial courts and in fact should be brought there.
The ordinances in question in this case are conservation measures which the local
governments of Palawan have adopted in view of the widespread destruction caused
by cyanide fishing of corals within their territorial waters. At the very least, these
ordinances must be presumed valid in the absence of evidence to show that the
necessary factual foundation for their enactment does not exist. Their invalidation at
this point can result in the untimely exoneration of otherwise guilty parties on the
basis of doubtful constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of Palawan adopted in

1993, prohibits, for a period of five years, the "catching, gathering, possessing,
buying, selling and shipment" of five fish and lobsters. As originally enacted, the
prohibition applied to eight species of fish and lobsters caught in the waters of
Palawan, namely, "1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno),
3. Cromileptes altivelis (Panther or Señorita), lobster (below 200 grams and
spawning), 4. Tridacna Gigas (Giant Clams or Taklobo and other species), 5.
Pinctada Margaritifera (Mother Pearl Oysters), 6. Penaeus Monodon (Tiger Prawn —
breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8.
Family: Balistidae (Tropical Aquarium Fishes)." 1 Later, however, the ordinance was
amended to limit the ban to three species only, namely: mameng (scaridae), panther
or señorita (cromileptes altivelis) and ornamental or aquarium fishes (balistidae).
Violation of the ordinance is punishable by a fine of P5,000.00 and/or imprisonment
of not less than 6 nor more than 12 months and confiscation of the paraphernalia
and equipment used in the commission of the offense. 2
Ordinance No. 2-93 was adopted by the Sangguniang Panlalawigan on the basis of
a 1992 study submitted by the Department of Agriculture, 3 showing that, as a result
of the use of cyanide and other noxious substances for fishing, only 5% of the coral
reefs in the Province of Palawan remained in excellent condition as fish sanctuaries
and habitats, while 75% was heavily damaged.
The rampant use of cyanide has been encouraged by the lucrative trade in live
fishes which are shipped not only to Manila but also abroad, principally to Hongkong,
Taiwan and Malaysia. The fishes are sold to gourmet restaurants because of the
great demand for exotic food, to aquariums and to pet shops. In its issue of July 19,
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1993. Time Magazine 4 reported that the illicit trade in live animals is the third
biggest contraband business in the world, after drugs and arms, and identified the
Philippines as a major source of tropical fishes for the global traffic in live fishes.
The use of cyanide enables fishermen to catch fish alive and in commercial quantity
in a way not possible with the use of such traditional methods as hook and line, fish
traps, baklad and the like, which allows only limited catch and often results in injuries
to fishes and the loss of their scales, thereby reducing their survival for transportation
abroad. 5 Cyanide does not kill fish but only stuns them. The stunned creatures are
then scooped up and placed in containers ready for shipment across borders,
national and transnational. What cyanide does, however, is poison the fragile reefs
and cause them to die and cease as fish habitats. 6
Concern over the use of cyanide in fishing and its ill effect on the marine
environment also prompted the Sangguniang Panlungsod of Puerto Princesa to pass
Ordinance No. 15-92, which makes it unlawful for any person or business enterprise
or company "to ship out from Puerto Princesa City to any point of destinations either
via aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH,
MUDFISH and MILKFISH FRIES." 7 The ban is for five years, from January 1, 1993
to January 1, 1998. The penalty for violation of the ordinance is a fine of not more
than P5,000.00 or imprisonment of not more than 12 months. 8
To enforce the ordinance, the mayor of Puerto Princesa ordered the inspection of
cargoes of live fish and lobsters leaving the city by air or sea. Inspectors are to
ascertain if the shipper has a permit issued by the office of the city mayor. Any cargo
of live fish and lobster without a permit from the mayor's office will be "held for proper
disposition." 9
The ordinances in question are police power measures, enacted by the Province of
Palawan and the City of Puerto Princesa, pursuant to the Local Government Code of
1991 which makes it in fact their duty to enact measures to "protect the environment
and impose appropriate penalties for acts which endanger the environment, such as
dynamite fishing and other forms of destructive fishing. . . ." 10 There is no basis for
the claim in the dissenting opinion that the subject of these ordinances lies within the
competence of the national government. For the matter concerns a local problem,
namely, the destruction of aquatic resources in the Province of Palawan. For this
reason the Solicitor General asked for leave to withdraw from this case. On the other
hand, the Department of Agriculture submitted its report on the extent of the
devastation of coral reefs caused by illegal fishing to the Sangguniang Panlalawigan
of Palawan and thereby left the solution of the problem to be worked out by the local
authorities. It would therefore set back the policy of decentralization were this Court
to sustain such a claim.
Indeed, petitioners' challenge to the validity of the ordinances does not rest on the
claim that the ordinances are beyond the power of local governments to enact but on
the ground that they deprive petitioners of their means of livelihood and occupation
and for that reason violate the Constitution of the Philippines. For support, petitioners
invoke the following constitutional provisions:
Art. XII, §2 . . . . .
The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources
by Filipino citizens, as well as cooperative fish farming, with priority to
subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons.
Art. XIII, §1: The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for the
common good.
Id., §7: The State shall protect the rights of subsistence fishermen, especially
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I cannot see how these provisions can, in any way, lend support to petitioners'
contention that the ordinances violate the Constitution. These provisions refer to the
duty of the State to protect the nation's marine resources for the exclusive use and
enjoyment of Filipino citizens, to the preferential right of subsistence fishermen in the
use of such communal marine resources, and to their right to be protected, even in
offshore fishing grounds, against foreign intrusion. There is no question here of
Filipino preference over aliens in the use of marine resources. What is in issue is the
protection of marine resources in the Province of Palawan. It was precisely to
implement Art. XII, §2 that the ordinances in question were enacted. For, without
these marine resources, it would be idle to talk of the rights of subsistence fishermen
to be preferred in the use of these resources.
It has been held that "as underlying questions of fact may condition the
constitutionality of legislation of this character, the presumption of constitutionality
must prevail in the absence of some factual foundation of record for overthrowing the
statute."11 No evidence has been presented by petitioners to overthrow the factual
basis of the ordinances — that, as a result of the use of cyanide and other noxious
substances for fishing, only 5% of the coral reefs in Palawan was in excellent
condition, that 75% had been heavily destroyed, and that because of the thriving
market for live fish and lobster here and abroad there was rampant illicit trade in live
fish.
Nor has it been shown by petitioners that the local legislation here involved is
arbitrary or unreasonable. It has been held: "If the laws passed are seen to have a
reasonable relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and judicial
determination to that effect renders a court functus officio. . . . With the wisdom of
the policy adopted, with the adequacy or practicability of the law enacted to forward
it, the courts are both incompetent and unauthorized to deal. . . ." 12
It is contended that neither Provincial Ordinance No. 2-93 nor City Ordinance No. 15-
92 prohibits cyanide fishing and therefore the prohibition against catching certain
species of fish and their transportation is "excessive and irrational." It is further
argued that the ban is unreasonable because it is not limited to cyanide fishing but
includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is already provided for
in other legislation. P.D. No. 534, §2 punishes fishing by means of "explosives,
obnoxious or poisonous substances or by the use of electricity." Consequently, the
ordinances in question can be seen as a necessary corollary of the prohibition
against illegal fishing contained in this Decree. By prohibiting the catching of certain
fishes and lobsters, Ordinance No. 2-93 in effect discourages cyanide fishing
because, as already stated, cyanide is preferred in catching fishes because it does
not kill but only stuns them and thus preserves them for export to the world market.
On the other hand, the claim that the ordinance sweeps overbroadly by "absolutely
prohibit[ing] the catching, gathering, buying and shipment of live fishes and marine
coral resources by any and all means including those lawfully executed or done in
the pursuit of legitimate occupation" misconceives the principal purpose of the
ordinance, which is not so much to prohibit the use of cyanide for fishing as to
rebuild corals because of their destruction by cyanide fishing. This is clear from the
"whereas" clauses of Resolution No. 33, accompanying Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies disclose that only
five (5) percent of the corals of our province remain to be in excellent
condition as habitat of marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of the

corals of our province were principally due to illegal fishing activities like
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dynamite fishing, sodium cyanide fishing, use of other obnoxious substances
and other related activities;
WHEREAS, there is an imperative and urgent need to protect and preserve
the existence of the remaining excellent corals and allow the devastated ones
to reinvigorate and regenerate themselves into vitality within the span of five
(5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160 otherwise known as

the Local Government Code of 1991 empowers the Sangguniang
Panlalawigan to protect the environment and impose appropriate penalties
[for] acts which endanger the environment such as dynamite fishing and other
forms of destructive fishing, among others;
The principal aim of the ordinance is thus the preservation and rehabilitation of the
corals. Only indirectly is it also concerned with prohibiting the use of cyanide. That
this is the aim of the ordinance can also be inferred from the fact that the ban
imposed by it on the catching and gathering of fishes is for a limited period (5 years)
calculated to be the time needed for the growth and regeneration of the corals. Were
the purpose of the ordinance the prohibition of the use of cyanide for fishing, the ban
would not be for a limited period only but for all time.
I am not much moved by the plea that the ordinances deprive small fishermen of
their means of livelihood and occupation. The ban imposed by Ordinance No. 2-93,
as amended, covers only three species, i.e., mameng (scaridae), panther or señorita
(cromilepres altivelis) and ornamental aquarium fishes (balistiedae), which are prized
in the black market. With respect to other species, it is open season for legitimate
fishermen. On the other hand, the ban imposed by Ordinance No. 15-92 allows the
transportation and shipment of sea bass, catfish, mudfish and milkfish fries. The ban
imposed by the two ordinances is limited to five years. It is thus limited both as to
scope and as to period of effectivity. There is, on the other hand, the imperative
necessity for measures to prevent the extinction of certain species of fish.
Indeed, the burden of showing that there is no reasonable relation between the end
and the means adopted in this case is not on the local governments but on
petitioners because of the presumption that a regulatory statute is valid in the
absence of factual evidence to the contrary. As held in United States
v. Salaveria.13 "The presumption is all in favor of validity. . . The councilors must, in
the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the ordinance, has in
effect given notice that the regulations are essential to the well being of the
people. . . . The Judiciary should not lightly set aside legislative action when there is
not a clear invasion of personal or property rights under the guise of police
regulation."
Finally, petitioners question Office Order No. 23, s. of 1993, of the city mayor of
Puerto Princesa, for being allegedly vague. This order prohibits the transportation of
fish outside the city without permit from the mayor's office. Petitioners contend that
the order does not state under what condition a permit may be granted and,
consequently, leaves it to the absolute discretion of the mayor when to grant and
when to deny a permit. The questioned paragraph of the order states:
The purpose of the inspection is to ascertain whether the shipper possessed

the required Mayor's Permit issued by this Office and the shipment is covered
by invoice or clearance issued by the local office of the Bureau of Fisheries
and Aquatic Resources and as to compliance with all other existing rules and
regulations on the matter.
This contention is untenable. As the office order is intended to implement City

Ordinance No. 15-92, resort must be made to the ordinance in order to determine
the scope of such office order. As already noted, the ordinance prohibits the
shipment out of Puerto Princesa of live fish and lobsters, with the exception of
catfish, mudfish and milkfish fries. Consequently, a permit may be denied if it is for
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the transportation of fishes which are covered by the ban, but not for those not
covered by it. This is the common sense meaning of the office order in question.
Criminal laws must be precisely drawn, but, as Justice Holmes once said, "We agree
to all the generalities about not supplying criminal laws with what they omit, but there
is no canon against using common sense in construing laws as saying what they
obviously mean."14
One final point. This case was brought to this Court on the bare bones of the
ordinances, on the mere claim of petitioner Alfredo Tano and his 83 copetitioners
that they are subsistence fishermen. The constitutional protection refers to small
fishermen who depend on the sea for their existence. Ten of the petitioners, led by
Alfredo Tano, are accused in the Municipal Circuit Trial Court of possession of the
species covered by Provincial Ordinance No. 2-93, while two, Roberto Lim and
Virginia Lim, are charged with violation of the two ordinances in the City Prosecutor's
Office. There is no telling from the records of this case whether petitioners are
subsistence fishermen or simply impecunious individuals selling their catch to the big
businessmen. The other petitioners are admittedly fish traders, members of an
association of airline shippers, to whom the constitutional provisions obviously do not
apply.
The judicial invalidation of the ordinances in this case could undermine the on-going
trial of some of petitioners. Instead of leaving the determination of the validity of the
ordinances to the trial court, where some of petitioners are facing charges, this Court
will be shortcircuiting the criminal process by prematurely passing upon the
constitutional questions and indirectly on the criminal liability of some of the
petitioners. This is a task which should await the development of evidence of record.
Indeed because of the unsatisfactory abstractness of the record, this case should not
have been brought here. The mere fact that some of petitioners are facing
prosecution for violation of the ordinances is no reason for entertaining their suit. Our
jurisdiction is limited to cases and controversies. Who are petitioners? What is the
impact of the ordinance on their economic situation? Are the factual bases of the two
ordinances supported by evidence? These questions must be raised in the criminal
trial or in a suit brought in the trial court so that facts necessary to adjudicate the
constitutional questions can be presented. Nothing can take the place of the flesh
and blood of litigation to assess the actual operation of a statute and thus ground the
judicial power more firmly.
Petitioners justify the filing of the present action in this Court on the ground that
constitutional questions must be raised at the earliest time. That is true, but it does
not mean that the questions should be presented to the Supreme Court first hand.
Moreover, the rule is not absolute. Constitutional questions like those invoked by
petitioners can be raised anytime, even in a motion for reconsideration, if their
resolution is necessary to the decision of an actual case or controversy, as our
recent resolution15 of the constitutionality of R.A. No. 7659, reimposing the death
penalty, amply demonstrates.
Romero, Melo, Puno and Francisco, JJ., concur.
BELLOSILLO, J., dissenting:
It is settled rule that where the provisions of the law are clear and unambiguous
there is no room for interpretation. The duty of the court is only to apply the law. The
exception to such rule cannot be justified on the sole basis of good motives or noble
objectives. For it is also basic that the end does not justify the means.
The petition raises significant constitutional questions. While petitioners apparently
instituted the action to enjoin their criminal prosecution, the issue boils down to
whether the subject ordinances of Palawan and Puerto Princesa are valid and
enforceable as to authorize the criminal prosecution of those charged with violation
thereof.
Notwithstanding the procedural limitations strictly applied in the majority opinion to
render the petition dismissible on grounds of prematurity and lack of real interest in
the controversy, the case clearly falls under the exceptions allowed by law. The
petition, I submit, can be properly treated as a special civil action for certiorari and
prohibition under Rule 65 of the Rules of Court to correct errors of jurisdiction
Josef Elvin Campos
committed by the lower court arising from the implementation of a void ordinance.
Even if the purpose of the petition is for declaratory relief, if the petition has far-
reaching implications and raises questions that should be resolved as they involve
national interest, it may be treated as a special civil action under Rule 65. 1 The
mere absence of a prior motion to quash the Information in the trial court should not
prevent the accused, petitioners herein, from seeking to render null and void the
criminal proceedings below.
In criminal cases, when the constitutionality or validity of a law or ordinance is

essentially involved, the same may be raised at any stage of the proceedings. It can
also be considered by the appellate court at any time if it involves the jurisdiction of
the lower Court. 2 Further, under Sec. 8, Rule 117, of the Rules on Criminal
Procedure, the failure of the accused to assert any ground of a motion to quash
before he pleads to the Complaint or Information either because he did not file a
motion to quash or failed to allege the same in the motion shall be deemed a waiver
of the grounds of a motion to quash, except the grounds of no offense charged, lack
of jurisdiction over the offense charged, extinction of the offense or penalty, and
jeopardy.
Petitioners are proper parties to set aside the proceedings in the trial court. A proper
party is one who has sustained or is in immediate danger of sustaining an injury as a
result of the act complained of. Petitioners have been criminally charged and
arrested for alleged violation of the ordinances in question. Consequently, unless the
trial court is enjoined from continuing with the proceedings, petitioners are in danger
of being convicted and punished under ordinances which they allege to be invalid
and ineffective. In fact this Court initially recognized the real interest of petitioners in
instituting the action when it issued a restraining order directing Judge Angel R.
Miclat to cease and desist until further orders from proceeding with the arraignment
and pre-trial of People v. Alfredo Tano, et al., Crim. Case No. 11223, for violation of
Resolution No. 2-93 of the Sangguniang Panlalawigan of Palawan, and Ordinance
No. 15-92 of the Sangguniang Panlungsod of Puerto Princesa City.
The question to be resolved is whether Resolution No. 2-93, Office Order No. 23 and
Ordinance No. 15-92 are constitutional, valid and enforceable. By considering the
purpose and objective of the ordinances as laudable, the majority adopts the
affirmative view in consonance with the general welfare clause and principle of
devolution well-rooted in the Local Government Code of 1991.
While I agree with the majority that the local leaders of Palawan and Puerto Princesa
City be commended for their efforts to uplift and protect the environment and natural
resources within their areas, the general welfare clause is not the sole criterion to
determine the validity or constitutionality of the ordinances. In Magtajas v. Pryce
Properties Corporation, 3 we reiterated that the well-established tests of a valid
ordinance are: (a) It must not contravene the Constitution or any statute; (b) It must
not be unfair or oppressive; (c) It must not be partial or discriminatory; (d) It must not
prohibit but may regulate trade; (e) It must be general and consistent with public
policy; and, (f) It must not be unreasonable.
As admitted by the majority, among our existing statutes on fishing and fishery or
aquatic resources are P.D. Nos. 704, 1015 and 1219. P.D. No. 704 is titled "Revising
and Consolidating All Laws and Decrees Affecting Fishing and Fisheries." With the
enactment of the Local Government Code of 1991, only Secs. 16 and 29 of P.D. No.
704 were expressly repealed. All the rest of the provisions of P.D. No. 704 remain
valid and effective, Sec. 4 of which is enlightening —
Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic Resources). —

The Bureau shall have jurisdiction and responsibility in the management,
conservation, development, protection, utilization and disposition of all fishery
and aquatic resources of the country except municipal waters which shall be
under the municipal or city government concerned: Provided, That fishpens
and seaweed culture in municipal centers shall be under the jurisdiction of the
Bureau: Provided, further, That all municipal or city ordinances and
resolutions affecting fishing and fisheries and any disposition thereunder shall
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be submitted to the Secretary for appropriate action and shall have full force
and effect only upon his approval. The Bureau shall also have authority to
regulate and supervise the production, capture and gathering of fish and
fishery/aquatic products.
There is no doubt that under P.D. No. 704 fishing, fishery and aquatic resources in
municipal waters are under the jurisdiction of the municipal or city government
concerned. However, the same decree imposes a mandatory requirement directing
municipal or city governments to submit ordinances enacted pertinent to fishing and
fishery resources to the Secretary of Agriculture who now has control and
supervision over the Bureau of Fisheries and Aquatic Resources (BFAR). The
ordinances will attain full force and effect only upon the approval of the Secretary of
Agriculture.
Ordinance 15-92 of Puerto Princesa City, admittedly, was not submitted to the
Secretary of Agriculture through the BFAR for approval. Such failure of compliance
with the law prevented it from becoming valid and effective. Consequently, Office
Order No. 23 of the Mayor of Puerto Princesa City which seeks to implement and
enforce Ordinance No. 15-92 is also ineffective as there is nothing to implement.
To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local Government
Code is gratuitous. For, if it was the intention of the legislature to dispense with the
requirement of prior approval by the Secretary of Agriculture of ordinances pertinent
to fishery resources, it would. have expressly repealed Sec. 4 when, in fact, it did so
with Secs. 16 and 29 of P.D. No. 704. Cases abound holding that a repeal by
implication is not presumed or favored considering that the legislature is presumed to
be aware of existing laws; ordinarily, if it intends to revoke a statute it would manifest
such intention in express terms. 4 Before such a repeal is deemed to exist it should
be shown that the statutes or statutory provisions deal with the same subject matter
and that the latter be inconsistent with the former. There must be a showing of
repugnancy clear and convincing in character. The language used in the latter
statute must be such as to render it irreconcilable with what has been formerly
enacted. An inconsistency that falls short of that standard does not suffice. In fact,
there is no inconsistency between the Local Government Code and P.D. No. 704 as
amended. While the Local Government Code vests power upon the local
government to enact ordinances for the general welfare of its inhabitants, such
power is subject to certain limitations imposed by the Code itself and by other
statutes. When the legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and
recognized a limitation on the power of the local government to enact ordinances
relative to matters affecting fishery and aquatic resources. A reading of particular
provisions of the Local Government Code itself will reveal that devolution on the
powers of the local government pertaining to the protection of environment is limited
and not all-encompassing, as will be discussed in the succeeding paragraphs.
Further, while the Local Government Code is a general law on the powers,
responsibilities and composition of different local government units, P.D. No. 704 is a
special law dealing with the protection and conservation of fishing and aquatic
resources including those in the municipal waters. Hence, the special law should
prevail over the general law.
There is also P.D. No. 1015 which vests upon the Secretary of Agriculture the
authority to establish closed seasons. Another existing law on fisheries which has
not been repealed by the Local Government Code is P.D. No. 1219, which provides
for the exploration, exploitation, utilization and conservation of coral resources.
Section 4 thereof provides that the decree shall be implemented by the Secretary of
Environment and Natural Resources who shall have jurisdiction and responsibility in
the exploration, exploitation, utilization and conservation of coral resources. Section
6 authorizes the Secretary to issue special permit to any person or institution to
gather in limited quantities any coral for scientific or educational purposes. Section
10 empowers the Secretary to promulgate rules and regulations for the
implementation of this law.
It is true that police power can be exercised through the general welfare clause. But,
while police power is inherent in a state, it is not so in municipal corporations or local
governments. In order that a local government may exercise police power, there
must be a legislative grant which necessarily sets the limits for the exercise of the
power. 5 In this case, Congress has enacted the Local Government Code which
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provides the standards as well as the limitations in the exercise of the police power
by the local government unit.
Section 2 of the Local Government Code provides for a system of decentralization

whereby local government units are given more powers, authority, responsibilities
and resources, and the process shall proceed from the national government to the
local government units. However, under Sec 3, par. (i), of the Local Government
Code, the operative principles of decentralization upon the environment and natural
resources are not absolute when it is provided therein that "local government units
shall share with the national government the responsibility in the management and
maintenance of ecological balance within their territorial jurisdiction, subject to the
provisions of this Code and national policies." The national policies mentioned here
refer to existing policies which the DENR and other government agencies concerned
with the environment may implement at any given moment. The national policies are
embodied in existing laws, rules and regulations pertaining to environment and
natural resources, such as P.D. Nos. 704 and 1219 relating to fishery resources. The
above provision was crafted to make sure that local government enactments do not
supplant or negate national government policies on environment. 6 This is precisely
the reason why the Local Government Code did not repeal Sec. 4 of P.D. NO. 704
requiring prior submission to and approval by the Secretary of Agriculture of
ordinances relative to fishery and aquatic resources. Needless to stress, the
approval of the Secretary is necessary in order to ensure that these ordinances are
in accordance with the laws on fisheries and national policies. Likewise, the
jurisdiction of the Secretary of Environment and Natural Resources over coral
resources under P.D. No. 1219 remains.
The core of the devolution adopted by the Local Government Code is found in Sec.
17 thereof which reiterates the basic services and facilities to be rendered by the
local governments. With respect to the protection and conservation of fisheries, Sec.
17, par. 2 (i), specifically provides that the municipality shall conduct "extension and
on-site research services and facilities related to agriculture and fishery activities
which include dispersal of livestock and poultry, fingerlings and other seeding
materials for aquaculture
. . . . and enforcement of fishery laws in municipal waters including the conservation

of mangroves . . . ." The power devolved upon the municipality under the Local
Government Code is the enforcement of existing fishery laws of the State and not
the enactment thereof. While a local government unit may adopt ordinances upon
subjects covered by law or statute, such ordinances should be in accordance with
and not repugnant to the law. 7 In view thereof, ordinances which may be enacted
by the municipality or city should be pursuant to the provisions of P.D. Nos. 704,
1015 and 1219. Thus, under the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi)
and 468, par. 1 (vi), the municipality, city and province respectively may approve
ordinances protecting the environment by specifically penalizing only those acts
which endanger the environment such as dynamite fishing and other forms of
destructive fishing which are already prohibited under P.D. Nos. 704 and 1219, and
other laws on illegal fishing. 8
The questioned ordinances may also be struck down for being not only a prohibitory
legislation but also an unauthorized exercise of delegation of powers. An objective,
however worthy or desirable it may be, such as the protection and conservation of
our fisheries in this case, can be attained by a measure that does not encompass too
wide a field. The purpose can be achieved by reasonable restrictions rather than by
absolute prohibition. Local governments are not possessed with prohibitory powers
but only regulatory powers under the general welfare clause. 9 They cannot
therefore exceed the powers granted to them by the Code by altogether prohibiting
fishing and selling for five (5) years all live fishes through Ordinance No. 15-92 and
coral organisms through Ordinance No. 2-93 involving even lawful methods of
fishing.
These prohibitions are tantamount to the establishment of a closed season for fish
and aquatic resources which authority is not among those powers vested by the
Local Government Code to the local government units. For the authority to establish
a closed season for fisheries is vested upon the Secretary of Agriculture by virtue of
P.D. Nos. 704 and 1015 and in the Secretary of Environment and Natural resources
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pursuant to P.D. No. 1219 in relation to coral resources. The power of the local
governments is confined and limited to ensuring that these national fishery laws are
implemented and enforced within their territorial jurisdictions. Hence, any
memorandum of agreement which might have been executed by the Department of
Agriculture or Department of Environment and Natural Resources granting additional
powers and functions to the local governments which are not vested upon the latter
by the Local Government Code because such powers are covered by existing
statutes, is an undue delegation of power and, consequently, null and void.
The majority also cites R.A. No. 7611, otherwise known as the Strategic
Environmental Plan (SEP) for Palawan Act, as proof of the power of the local
governments of Palawan and Puerto Princesa City to issue the assailed ordinances.
Although the objectives of R.A. No. 7611 and of the ordinances are one and the
same, i.e., the protection, conservation and development of natural resources, the
former does not grant additional powers to the local governments pertaining to the
environment. In fact, the law adopts a comprehensive framework which shall serve
to direct and guide local governments and national government agencies in the
implementation of programs and projects affecting Palawan. With the enactment of
this Act, the local governments are mandated to coordinate and align their
developmental plans, projects and budgets in accord with the framework of the SEP.
It can be said that this is another limitation on the exercise of police power by the
local governments of Palawan and Puerto Princesa City because the governance,
implementation and policy direction of the SEP shall be exercised by the Palawan
Council for Sustainable Development (PCSD) which is under the Office of the
President.
Finally, I find unreasonable Resolution No. 2-93 of Palawan and Ordinance No. 15-
92 of Puerto Princesa City. The prohibitions set forth are not germane to the
accomplishment of their goals. Ordinance No. 15-92 is aimed to free effectively the
marine resources of Puerto Princesa from cyanide and other obnoxious substances.
But the means to achieve this objective borders on the excessive and irrational, for
the edict would absolutely ban the shipment of live fishes and lobsters out of the city
for a period of five (5) years without prohibiting cyanide fishing itself which is the
professed goal of the ordinance. The purpose of Resolution No. 2-93, on the other
hand, is to protect and preserve all marine coral-dwelling organisms from
devastation and destruction by illegal fishing activities, e.g., dynamite fishing, sodium
cyanide fishing, and the use of other obnoxious substances. But in absolutely
prohibiting the catching, gathering, buying and shipment of live fishes and marine
coral resources by any means including those lawfully executed or done in the
pursuit of legitimate occupation, the ordinance overstepped the reasonable limits and
boundaries of its raison d'etre. This I cannot help viewing as plain arbitrariness
masquerading as police power. For the consequent deprivation of the main source of
livelihood of the people of Palawan can only be regarded as utter depravation of this
awesome power of the State.
For all the foregoing, I vote to grant the petition.
Kapunan and Hermosisima, Jr., JJ., concur.
Separate Opinions
MENDOZA, J., concurring:
I fully concur in the opinion of the Court written by Justice Davide. I write separately
to emphasize two points which I believe are important. The first is the need to uphold
the presumption of validity of the ordinances in this case in view of the total absence
of evidence to undermine their factual basis. The second is the need not to allow a
shortcircuiting of the normal process of adjudication on the mere plea that unless we
take cognizance of petitions like this, by-passing the trial courts, alleged violations of
constitutional rights will be left unprotected, when the matter can very well be looked
into by trial courts and in fact should be brought there.
The ordinances in question in this case are conservation measures which the local
governments of Palawan have adopted in view of the widespread destruction caused
by cyanide fishing of corals within their territorial waters. At the very least, these
ordinances must be presumed valid in the absence of evidence to show that the
necessary factual foundation for their enactment does not exist. Their invalidation at
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this point can result in the untimely exoneration of otherwise guilty parties on the
basis of doubtful constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of Palawan adopted in

1993, prohibits, for a period of five years, the "catching, gathering, possessing,
buying, selling and shipment" of five fish and lobsters. As originally enacted, the
prohibition applied to eight species of fish and lobsters caught in the waters of
Palawan, namely, "1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno),
3. Cromileptes altivelis (Panther or Señorita), lobster (below 200 grams and
spawning), 4. Tridacna Gigas (Giant Clams or Taklobo and other species), 5.
Pinctada Margaritifera (Mother Pearl Oysters), 6. Penaeus Monodon (Tiger Prawn —
breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8.
Family: Balistidae (Tropical Aquarium Fishes)." 1 Later, however, the ordinance was
amended to limit the ban to three species only, namely: mameng (scaridae), panther
or señorita (cromileptes altivelis) and ornamental or aquarium fishes (balistidae).
Violation of the ordinance is punishable by a fine of P5,000.00 and/or imprisonment
of not less than 6 nor more than 12 months and confiscation of the paraphernalia
and equipment used in the commission of the offense. 2
Ordinance No. 2-93 was adopted by the Sangguniang Panlalawigan on the basis of
a 1992 study submitted by the Department of Agriculture, 3 showing that, as a result
of the use of cyanide and other noxious substances for fishing, only 5% of the coral
reefs in the Province of Palawan remained in excellent condition as fish sanctuaries
and habitats, while 75% was heavily damaged.
The rampant use of cyanide has been encouraged by the lucrative trade in live
fishes which are shipped not only to Manila but also abroad, principally to Hongkong,
Taiwan and Malaysia. The fishes are sold to gourmet restaurants because of the
great demand for exotic food, to aquariums and to pet shops. In its issue of July 19,
1993. Time Magazine 4 reported that the illicit trade in live animals is the third
biggest contraband business in the world, after drugs and arms, and identified the
Philippines as a major source of tropical fishes for the global traffic in live fishes.
The use of cyanide enables fishermen to catch fish alive and in commercial quantity
in a way not possible with the use of such traditional methods as hook and line, fish
traps, baklad and the like, which allows only limited catch and often results in injuries
to fishes and the loss of their scales, thereby reducing their survival for transportation
abroad. 5 Cyanide does not kill fish but only stuns them. The stunned creatures are
then scooped up and placed in containers ready for shipment across borders,
national and transnational. What cyanide does, however, is poison the fragile reefs
and cause them to die and cease as fish habitats. 6
Concern over the use of cyanide in fishing and its ill effect on the marine
environment also prompted the Sangguniang Panlungsod of Puerto Princesa to pass
Ordinance No. 15-92, which makes it unlawful for any person or business enterprise
or company "to ship out from Puerto Princesa City to any point of destinations either
via aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH,
MUDFISH and MILKFISH FRIES." 7 The ban is for five years, from January 1, 1993
to January 1, 1998. The penalty for violation of the ordinance is a fine of not more
than P5,000.00 or imprisonment of not more than 12 months. 8
To enforce the ordinance, the mayor of Puerto Princesa ordered the inspection of
cargoes of live fish and lobsters leaving the city by air or sea. Inspectors are to
ascertain if the shipper has a permit issued by the office of the city mayor. Any cargo
of live fish and lobster without a permit from the mayor's office will be "held for proper
disposition." 9
The ordinances in question are police power measures, enacted by the Province of
Palawan and the City of Puerto Princesa, pursuant to the Local Government Code of
1991 which makes it in fact their duty to enact measures to "protect the environment
and impose appropriate penalties for acts which endanger the environment, such as
dynamite fishing and other forms of destructive fishing. . . ." 10 There is no basis for
the claim in the dissenting opinion that the subject of these ordinances lies within the
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competence of the national government. For the matter concerns a local problem,
namely, the destruction of aquatic resources in the Province of Palawan. For this
reason the Solicitor General asked for leave to withdraw from this case. On the other
hand, the Department of Agriculture submitted its report on the extent of the
devastation of coral reefs caused by illegal fishing to the Sangguniang Panlalawigan
of Palawan and thereby left the solution of the problem to be worked out by the local
authorities. It would therefore set back the policy of decentralization were this Court
to sustain such a claim.
Indeed, petitioners' challenge to the validity of the ordinances does not rest on the
claim that the ordinances are beyond the power of local governments to enact but on
the ground that they deprive petitioners of their means of livelihood and occupation
and for that reason violate the Constitution of the Philippines. For support, petitioners
invoke the following constitutional provisions:
Art. XII, §2 . . . . .
The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources
by Filipino citizens, as well as cooperative fish farming, with priority to
subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons.
Art. XIII, §1: The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for the
common good.
Id., §7: The State shall protect the rights of subsistence fishermen, especially
I cannot see how these provisions can, in any way, lend support to petitioners'
contention that the ordinances violate the Constitution. These provisions refer to the
duty of the State to protect the nation's marine resources for the exclusive use and
enjoyment of Filipino citizens, to the preferential right of subsistence fishermen in the
use of such communal marine resources, and to their right to be protected, even in
offshore fishing grounds, against foreign intrusion. There is no question here of
Filipino preference over aliens in the use of marine resources. What is in issue is the
protection of marine resources in the Province of Palawan. It was precisely to
implement Art. XII, §2 that the ordinances in question were enacted. For, without
these marine resources, it would be idle to talk of the rights of subsistence fishermen
to be preferred in the use of these resources.
It has been held that "as underlying questions of fact may condition the
constitutionality of legislation of this character, the presumption of constitutionality
must prevail in the absence of some factual foundation of record for overthrowing the
statute."11 No evidence has been presented by petitioners to overthrow the factual
basis of the ordinances — that, as a result of the use of cyanide and other noxious
substances for fishing, only 5% of the coral reefs in Palawan was in excellent
condition, that 75% had been heavily destroyed, and that because of the thriving
market for live fish and lobster here and abroad there was rampant illicit trade in live
fish.
Nor has it been shown by petitioners that the local legislation here involved is
arbitrary or unreasonable. It has been held: "If the laws passed are seen to have a
reasonable relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and judicial
determination to that effect renders a court functus officio. . . . With the wisdom of
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the policy adopted, with the adequacy or practicability of the law enacted to forward
it, the courts are both incompetent and unauthorized to deal. . . ." 12
It is contended that neither Provincial Ordinance No. 2-93 nor City Ordinance No. 15-
92 prohibits cyanide fishing and therefore the prohibition against catching certain
species of fish and their transportation is "excessive and irrational." It is further
argued that the ban is unreasonable because it is not limited to cyanide fishing but
includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is already provided for
in other legislation. P.D. No. 534, §2 punishes fishing by means of "explosives,
obnoxious or poisonous substances or by the use of electricity." Consequently, the
ordinances in question can be seen as a necessary corollary of the prohibition
against illegal fishing contained in this Decree. By prohibiting the catching of certain
fishes and lobsters, Ordinance No. 2-93 in effect discourages cyanide fishing
because, as already stated, cyanide is preferred in catching fishes because it does
not kill but only stuns them and thus preserves them for export to the world market.
On the other hand, the claim that the ordinance sweeps overbroadly by "absolutely
prohibit[ing] the catching, gathering, buying and shipment of live fishes and marine
coral resources by any and all means including those lawfully executed or done in
the pursuit of legitimate occupation" misconceives the principal purpose of the
ordinance, which is not so much to prohibit the use of cyanide for fishing as to
rebuild corals because of their destruction by cyanide fishing. This is clear from the
"whereas" clauses of Resolution No. 33, accompanying Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies disclose that only
five (5) percent of the corals of our province remain to be in excellent
condition as habitat of marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of the
corals of our province were principally due to illegal fishing activities like
dynamite fishing, sodium cyanide fishing, use of other obnoxious substances
and other related activities;
WHEREAS, there is an imperative and urgent need to protect and preserve
the existence of the remaining excellent corals and allow the devastated ones
to reinvigorate and regenerate themselves into vitality within the span of five
(5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160 otherwise known as
the Local Government Code of 1991 empowers the Sangguniang
Panlalawigan to protect the environment and impose appropriate penalties
[for] acts which endanger the environment such as dynamite fishing and other
forms of destructive fishing, among others;
The principal aim of the ordinance is thus the preservation and rehabilitation of the
corals. Only indirectly is it also concerned with prohibiting the use of cyanide. That
this is the aim of the ordinance can also be inferred from the fact that the ban
imposed by it on the catching and gathering of fishes is for a limited period (5 years)
calculated to be the time needed for the growth and regeneration of the corals. Were
the purpose of the ordinance the prohibition of the use of cyanide for fishing, the ban
would not be for a limited period only but for all time.
I am not much moved by the plea that the ordinances deprive small fishermen of
their means of livelihood and occupation. The ban imposed by Ordinance No. 2-93,
as amended, covers only three species, i.e., mameng (scaridae), panther or señorita
(cromilepres altivelis) and ornamental aquarium fishes (balistiedae), which are prized
in the black market. With respect to other species, it is open season for legitimate
fishermen. On the other hand, the ban imposed by Ordinance No. 15-92 allows the
transportation and shipment of sea bass, catfish, mudfish and milkfish fries. The ban
imposed by the two ordinances is limited to five years. It is thus limited both as to
scope and as to period of effectivity. There is, on the other hand, the imperative
necessity for measures to prevent the extinction of certain species of fish.
Josef Elvin Campos
Indeed, the burden of showing that there is no reasonable relation between the end
and the means adopted in this case is not on the local governments but on
petitioners because of the presumption that a regulatory statute is valid in the
absence of factual evidence to the contrary. As held in United States
v. Salaveria.13 "The presumption is all in favor of validity. . . The councilors must, in
the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the ordinance, has in
effect given notice that the regulations are essential to the well being of the
people. . . . The Judiciary should not lightly set aside legislative action when there is
not a clear invasion of personal or property rights under the guise of police
regulation."
Finally, petitioners question Office Order No. 23, s. of 1993, of the city mayor of
Puerto Princesa, for being allegedly vague. This order prohibits the transportation of
fish outside the city without permit from the mayor's office. Petitioners contend that
the order does not state under what condition a permit may be granted and,
consequently, leaves it to the absolute discretion of the mayor when to grant and
when to deny a permit. The questioned paragraph of the order states:
The purpose of the inspection is to ascertain whether the shipper possessed

the required Mayor's Permit issued by this Office and the shipment is covered
by invoice or clearance issued by the local office of the Bureau of Fisheries
and Aquatic Resources and as to compliance with all other existing rules and
regulations on the matter.
This contention is untenable. As the office order is intended to implement City

Ordinance No. 15-92, resort must be made to the ordinance in order to determine
the scope of such office order. As already noted, the ordinance prohibits the
shipment out of Puerto Princesa of live fish and lobsters, with the exception of
catfish, mudfish and milkfish fries. Consequently, a permit may be denied if it is for
the transportation of fishes which are covered by the ban, but not for those not
covered by it. This is the common sense meaning of the office order in question.
Criminal laws must be precisely drawn, but, as Justice Holmes once said, "We agree
to all the generalities about not supplying criminal laws with what they omit, but there
is no canon against using common sense in construing laws as saying what they
obviously mean."14
One final point. This case was brought to this Court on the bare bones of the
ordinances, on the mere claim of petitioner Alfredo Tano and his 83 copetitioners
that they are subsistence fishermen. The constitutional protection refers to small
fishermen who depend on the sea for their existence. Ten of the petitioners, led by
Alfredo Tano, are accused in the Municipal Circuit Trial Court of possession of the
species covered by Provincial Ordinance No. 2-93, while two, Roberto Lim and
Virginia Lim, are charged with violation of the two ordinances in the City Prosecutor's
Office. There is no telling from the records of this case whether petitioners are
subsistence fishermen or simply impecunious individuals selling their catch to the big
businessmen. The other petitioners are admittedly fish traders, members of an
association of airline shippers, to whom the constitutional provisions obviously do not
apply.
The judicial invalidation of the ordinances in this case could undermine the on-going
trial of some of petitioners. Instead of leaving the determination of the validity of the
ordinances to the trial court, where some of petitioners are facing charges, this Court
will be shortcircuiting the criminal process by prematurely passing upon the
constitutional questions and indirectly on the criminal liability of some of the
petitioners. This is a task which should await the development of evidence of record.
Indeed because of the unsatisfactory abstractness of the record, this case should not
have been brought here. The mere fact that some of petitioners are facing
prosecution for violation of the ordinances is no reason for entertaining their suit. Our
jurisdiction is limited to cases and controversies. Who are petitioners? What is the
impact of the ordinance on their economic situation? Are the factual bases of the two
ordinances supported by evidence? These questions must be raised in the criminal
trial or in a suit brought in the trial court so that facts necessary to adjudicate the
Josef Elvin Campos
constitutional questions can be presented. Nothing can take the place of the flesh
and blood of litigation to assess the actual operation of a statute and thus ground the
judicial power more firmly.
Petitioners justify the filing of the present action in this Court on the ground that
constitutional questions must be raised at the earliest time. That is true, but it does
not mean that the questions should be presented to the Supreme Court first hand.
Moreover, the rule is not absolute. Constitutional questions like those invoked by
petitioners can be raised anytime, even in a motion for reconsideration, if their
resolution is necessary to the decision of an actual case or controversy, as our
recent resolution15 of the constitutionality of R.A. No. 7659, reimposing the death
penalty, amply demonstrates.
Romero, Melo, Puno and Francisco, JJ., concur.
BELLOSILLO, J., dissenting:
It is settled rule that where the provisions of the law are clear and unambiguous
there is no room for interpretation. The duty of the court is only to apply the law. The
exception to such rule cannot be justified on the sole basis of good motives or noble
objectives. For it is also basic that the end does not justify the means.
The petition raises significant constitutional questions. While petitioners apparently
instituted the action to enjoin their criminal prosecution, the issue boils down to
whether the subject ordinances of Palawan and Puerto Princesa are valid and
enforceable as to authorize the criminal prosecution of those charged with violation
thereof.
Notwithstanding the procedural limitations strictly applied in the majority opinion to
render the petition dismissible on grounds of prematurity and lack of real interest in
the controversy, the case clearly falls under the exceptions allowed by law. The
petition, I submit, can be properly treated as a special civil action for certiorari and
prohibition under Rule 65 of the Rules of Court to correct errors of jurisdiction
committed by the lower court arising from the implementation of a void ordinance.
Even if the purpose of the petition is for declaratory relief, if the petition has far-
reaching implications and raises questions that should be resolved as they involve
national interest, it may be treated as a special civil action under Rule 65. 1 The
mere absence of a prior motion to quash the Information in the trial court should not
prevent the accused, petitioners herein, from seeking to render null and void the
criminal proceedings below.
In criminal cases, when the constitutionality or validity of a law or ordinance is

essentially involved, the same may be raised at any stage of the proceedings. It can
also be considered by the appellate court at any time if it involves the jurisdiction of
the lower Court. 2 Further, under Sec. 8, Rule 117, of the Rules on Criminal
Procedure, the failure of the accused to assert any ground of a motion to quash
before he pleads to the Complaint or Information either because he did not file a
motion to quash or failed to allege the same in the motion shall be deemed a waiver
of the grounds of a motion to quash, except the grounds of no offense charged, lack
of jurisdiction over the offense charged, extinction of the offense or penalty, and
jeopardy.
Petitioners are proper parties to set aside the proceedings in the trial court. A proper
party is one who has sustained or is in immediate danger of sustaining an injury as a
result of the act complained of. Petitioners have been criminally charged and
arrested for alleged violation of the ordinances in question. Consequently, unless the
trial court is enjoined from continuing with the proceedings, petitioners are in danger
of being convicted and punished under ordinances which they allege to be invalid
and ineffective. In fact this Court initially recognized the real interest of petitioners in
instituting the action when it issued a restraining order directing Judge Angel R.
Miclat to cease and desist until further orders from proceeding with the arraignment
and pre-trial of People v. Alfredo Tano, et al., Crim. Case No. 11223, for violation of
Resolution No. 2-93 of the Sangguniang Panlalawigan of Palawan, and Ordinance
No. 15-92 of the Sangguniang Panlungsod of Puerto Princesa City.
Josef Elvin Campos
The question to be resolved is whether Resolution No. 2-93, Office Order No. 23 and
Ordinance No. 15-92 are constitutional, valid and enforceable. By considering the
purpose and objective of the ordinances as laudable, the majority adopts the
affirmative view in consonance with the general welfare clause and principle of
devolution well-rooted in the Local Government Code of 1991.
While I agree with the majority that the local leaders of Palawan and Puerto Princesa
City be commended for their efforts to uplift and protect the environment and natural
resources within their areas, the general welfare clause is not the sole criterion to
determine the validity or constitutionality of the ordinances. In Magtajas v. Pryce
Properties Corporation, 3 we reiterated that the well-established tests of a valid
ordinance are: (a) It must not contravene the Constitution or any statute; (b) It must
not be unfair or oppressive; (c) It must not be partial or discriminatory; (d) It must not
prohibit but may regulate trade; (e) It must be general and consistent with public
policy; and, (f) It must not be unreasonable.
As admitted by the majority, among our existing statutes on fishing and fishery or
aquatic resources are P.D. Nos. 704, 1015 and 1219. P.D. No. 704 is titled "Revising
and Consolidating All Laws and Decrees Affecting Fishing and Fisheries." With the
enactment of the Local Government Code of 1991, only Secs. 16 and 29 of P.D. No.
704 were expressly repealed. All the rest of the provisions of P.D. No. 704 remain
valid and effective, Sec. 4 of which is enlightening —
Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic Resources). —

The Bureau shall have jurisdiction and responsibility in the management,
conservation, development, protection, utilization and disposition of all fishery
and aquatic resources of the country except municipal waters which shall be
under the municipal or city government concerned: Provided, That fishpens
and seaweed culture in municipal centers shall be under the jurisdiction of the
Bureau: Provided, further, That all municipal or city ordinances and
resolutions affecting fishing and fisheries and any disposition thereunder shall
be submitted to the Secretary for appropriate action and shall have full force
and effect only upon his approval. The Bureau shall also have authority to
regulate and supervise the production, capture and gathering of fish and
fishery/aquatic products.
There is no doubt that under P.D. No. 704 fishing, fishery and aquatic resources in
municipal waters are under the jurisdiction of the municipal or city government
concerned. However, the same decree imposes a mandatory requirement directing
municipal or city governments to submit ordinances enacted pertinent to fishing and
fishery resources to the Secretary of Agriculture who now has control and
supervision over the Bureau of Fisheries and Aquatic Resources (BFAR). The
ordinances will attain full force and effect only upon the approval of the Secretary of
Agriculture.
Ordinance 15-92 of Puerto Princesa City, admittedly, was not submitted to the
Secretary of Agriculture through the BFAR for approval. Such failure of compliance
with the law prevented it from becoming valid and effective. Consequently, Office
Order No. 23 of the Mayor of Puerto Princesa City which seeks to implement and
enforce Ordinance No. 15-92 is also ineffective as there is nothing to implement.
To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local Government
Code is gratuitous. For, if it was the intention of the legislature to dispense with the
requirement of prior approval by the Secretary of Agriculture of ordinances pertinent
to fishery resources, it would. have expressly repealed Sec. 4 when, in fact, it did so
with Secs. 16 and 29 of P.D. No. 704. Cases abound holding that a repeal by
implication is not presumed or favored considering that the legislature is presumed to
be aware of existing laws; ordinarily, if it intends to revoke a statute it would manifest
such intention in express terms. 4 Before such a repeal is deemed to exist it should
be shown that the statutes or statutory provisions deal with the same subject matter
and that the latter be inconsistent with the former. There must be a showing of
repugnancy clear and convincing in character. The language used in the latter
statute must be such as to render it irreconcilable with what has been formerly
enacted. An inconsistency that falls short of that standard does not suffice. In fact,
there is no inconsistency between the Local Government Code and P.D. No. 704 as
Josef Elvin Campos
amended. While the Local Government Code vests power upon the local
government to enact ordinances for the general welfare of its inhabitants, such
power is subject to certain limitations imposed by the Code itself and by other
statutes. When the legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and
recognized a limitation on the power of the local government to enact ordinances
relative to matters affecting fishery and aquatic resources. A reading of particular
provisions of the Local Government Code itself will reveal that devolution on the
powers of the local government pertaining to the protection of environment is limited
and not all-encompassing, as will be discussed in the succeeding paragraphs.
Further, while the Local Government Code is a general law on the powers,
responsibilities and composition of different local government units, P.D. No. 704 is a
special law dealing with the protection and conservation of fishing and aquatic
resources including those in the municipal waters. Hence, the special law should
prevail over the general law.
There is also P.D. No. 1015 which vests upon the Secretary of Agriculture the
authority to establish closed seasons. Another existing law on fisheries which has
not been repealed by the Local Government Code is P.D. No. 1219, which provides
for the exploration, exploitation, utilization and conservation of coral resources.
Section 4 thereof provides that the decree shall be implemented by the Secretary of
Environment and Natural Resources who shall have jurisdiction and responsibility in
the exploration, exploitation, utilization and conservation of coral resources. Section
6 authorizes the Secretary to issue special permit to any person or institution to
gather in limited quantities any coral for scientific or educational purposes. Section
10 empowers the Secretary to promulgate rules and regulations for the
implementation of this law.
It is true that police power can be exercised through the general welfare clause. But,
while police power is inherent in a state, it is not so in municipal corporations or local
governments. In order that a local government may exercise police power, there
must be a legislative grant which necessarily sets the limits for the exercise of the
power. 5 In this case, Congress has enacted the Local Government Code which
provides the standards as well as the limitations in the exercise of the police power
by the local government unit.
Section 2 of the Local Government Code provides for a system of decentralization

whereby local government units are given more powers, authority, responsibilities
and resources, and the process shall proceed from the national government to the
local government units. However, under Sec 3, par. (i), of the Local Government
Code, the operative principles of decentralization upon the environment and natural
resources are not absolute when it is provided therein that "local government units
shall share with the national government the responsibility in the management and
maintenance of ecological balance within their territorial jurisdiction, subject to the
provisions of this Code and national policies." The national policies mentioned here
refer to existing policies which the DENR and other government agencies concerned
with the environment may implement at any given moment. The national policies are
embodied in existing laws, rules and regulations pertaining to environment and
natural resources, such as P.D. Nos. 704 and 1219 relating to fishery resources. The
above provision was crafted to make sure that local government enactments do not
supplant or negate national government policies on environment. 6 This is precisely
the reason why the Local Government Code did not repeal Sec. 4 of P.D. NO. 704
requiring prior submission to and approval by the Secretary of Agriculture of
ordinances relative to fishery and aquatic resources. Needless to stress, the
approval of the Secretary is necessary in order to ensure that these ordinances are
in accordance with the laws on fisheries and national policies. Likewise, the
jurisdiction of the Secretary of Environment and Natural Resources over coral
resources under P.D. No. 1219 remains.
The core of the devolution adopted by the Local Government Code is found in Sec.
17 thereof which reiterates the basic services and facilities to be rendered by the
local governments. With respect to the protection and conservation of fisheries, Sec.
17, par. 2 (i), specifically provides that the municipality shall conduct "extension and
Josef Elvin Campos
on-site research services and facilities related to agriculture and fishery activities
which include dispersal of livestock and poultry, fingerlings and other seeding
materials for aquaculture
. . . . and enforcement of fishery laws in municipal waters including the conservation

of mangroves . . . ." The power devolved upon the municipality under the Local
Government Code is the enforcement of existing fishery laws of the State and not
the enactment thereof. While a local government unit may adopt ordinances upon
subjects covered by law or statute, such ordinances should be in accordance with
and not repugnant to the law. 7 In view thereof, ordinances which may be enacted
by the municipality or city should be pursuant to the provisions of P.D. Nos. 704,
1015 and 1219. Thus, under the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi)
and 468, par. 1 (vi), the municipality, city and province respectively may approve
ordinances protecting the environment by specifically penalizing only those acts
which endanger the environment such as dynamite fishing and other forms of
destructive fishing which are already prohibited under P.D. Nos. 704 and 1219, and
other laws on illegal fishing. 8
The questioned ordinances may also be struck down for being not only a prohibitory
legislation but also an unauthorized exercise of delegation of powers. An objective,
however worthy or desirable it may be, such as the protection and conservation of
our fisheries in this case, can be attained by a measure that does not encompass too
wide a field. The purpose can be achieved by reasonable restrictions rather than by
absolute prohibition. Local governments are not possessed with prohibitory powers
but only regulatory powers under the general welfare clause. 9 They cannot
therefore exceed the powers granted to them by the Code by altogether prohibiting
fishing and selling for five (5) years all live fishes through Ordinance No. 15-92 and
coral organisms through Ordinance No. 2-93 involving even lawful methods of
fishing.
These prohibitions are tantamount to the establishment of a closed season for fish
and aquatic resources which authority is not among those powers vested by the
Local Government Code to the local government units. For the authority to establish
a closed season for fisheries is vested upon the Secretary of Agriculture by virtue of
P.D. Nos. 704 and 1015 and in the Secretary of Environment and Natural resources
pursuant to P.D. No. 1219 in relation to coral resources. The power of the local
governments is confined and limited to ensuring that these national fishery laws are
implemented and enforced within their territorial jurisdictions. Hence, any
memorandum of agreement which might have been executed by the Department of
Agriculture or Department of Environment and Natural Resources granting additional
powers and functions to the local governments which are not vested upon the latter
by the Local Government Code because such powers are covered by existing
statutes, is an undue delegation of power and, consequently, null and void.
The majority also cites R.A. No. 7611, otherwise known as the Strategic
Environmental Plan (SEP) for Palawan Act, as proof of the power of the local
governments of Palawan and Puerto Princesa City to issue the assailed ordinances.
Although the objectives of R.A. No. 7611 and of the ordinances are one and the
same, i.e., the protection, conservation and development of natural resources, the
former does not grant additional powers to the local governments pertaining to the
environment. In fact, the law adopts a comprehensive framework which shall serve
to direct and guide local governments and national government agencies in the
implementation of programs and projects affecting Palawan. With the enactment of
this Act, the local governments are mandated to coordinate and align their
developmental plans, projects and budgets in accord with the framework of the SEP.
It can be said that this is another limitation on the exercise of police power by the
local governments of Palawan and Puerto Princesa City because the governance,
implementation and policy direction of the SEP shall be exercised by the Palawan
Council for Sustainable Development (PCSD) which is under the Office of the
President.
Finally, I find unreasonable Resolution No. 2-93 of Palawan and Ordinance No. 15-
92 of Puerto Princesa City. The prohibitions set forth are not germane to the
accomplishment of their goals. Ordinance No. 15-92 is aimed to free effectively the
Josef Elvin Campos
marine resources of Puerto Princesa from cyanide and other obnoxious substances.
But the means to achieve this objective borders on the excessive and irrational, for
the edict would absolutely ban the shipment of live fishes and lobsters out of the city
for a period of five (5) years without prohibiting cyanide fishing itself which is the
professed goal of the ordinance. The purpose of Resolution No. 2-93, on the other
hand, is to protect and preserve all marine coral-dwelling organisms from
devastation and destruction by illegal fishing activities, e.g., dynamite fishing, sodium
cyanide fishing, and the use of other obnoxious substances. But in absolutely
prohibiting the catching, gathering, buying and shipment of live fishes and marine
coral resources by any means including those lawfully executed or done in the
pursuit of legitimate occupation, the ordinance overstepped the reasonable limits and
boundaries of its raison d'etre. This I cannot help viewing as plain arbitrariness
masquerading as police power. For the consequent deprivation of the main source of
livelihood of the people of Palawan can only be regarded as utter depravation of this
awesome power of the State.
For all the foregoing, I vote to grant the petition.
Kapunan and Hermosisima, Jr., JJ., concur.
White Light Corp. v. City of Manila (G.R. No. 122846, 20 January 2009)
G.R. No. 122846 January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST
& DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S.
LIM, Respondent.
DECISION
Tinga, J.:
With another city ordinance of Manila also principally involving the tourist district as subject,
the Court is confronted anew with the incessant clash between government power and
individual liberty in tandem with the archetypal tension between law and morality.
In City of Manila v. Laguio, Jr., 1 the Court affirmed the nullification of a city ordinance
barring the operation of motels and inns, among other establishments, within the Ermita-
Malate area. The petition at bar assails a similarly-motivated city ordinance that prohibits
those same establishments from offering short-time admission, as well as pro-rated or
"wash up" rates for such abbreviated stays. Our earlier decision tested the city ordinance
against our sacred constitutional rights to liberty, due process and equal protection of law.
The same parameters apply to the present petition.
This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the
reversal of the Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges
the validity of Manila City Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-
Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels,
Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of
Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the
Ordinance.4 The Ordinance is reproduced in full, hereunder:
SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to
protect the best interest, health and welfare, and the morality of its constituents in general
and the youth in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time
admission in hotels, motels, lodging houses, pension houses and similar establishments in
the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or
other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging
houses, pension houses and similar establishments in the City of Manila.
Josef Elvin Campos
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of
room rate for less than twelve (12) hours at any given time or the renting out of rooms more
than twice a day or any other term that may be concocted by owners or managers of said
establishments but would mean the same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this
ordinance shall upon conviction thereof be punished by a fine of Five Thousand (₱5,000.00)
Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and
imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the
president, the manager, or the persons in charge of the operation thereof shall be liable:
Provided, further, That in case of subsequent conviction for the same offense, the business
license of the guilty party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or
contrary to this measure or any portion hereof are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.
Enacted by the city Council of Manila at its regular session today, November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a
complaint for declaratory relief with prayer for a writ of preliminary injunction and/or
temporary restraining order ( TRO) 5 with the Regional Trial Court (RTC) of Manila, Branch 9
impleading as defendant, herein respondent City of Manila (the City) represented by Mayor
Lim.6 MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as
owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential
Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge
customers wash up rates for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation
(TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to
intervene and to admit attached complaint-in-intervention 7 on the ground that the Ordinance
directly affects their business interests as operators of drive-in-hotels and motels in
Manila.8 The three companies are components of the Anito Group of Companies which
owns and operates several hotels and motels in Metro Manila. 9
On December 23, 1992, the RTC granted the motion to intervene. 10 The RTC also notified
the Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of
Court. On the same date, MTDC moved to withdraw as plaintiff. 11
On December 28, 1992, the RTC granted MTDC's motion to withdraw. 12 The RTC issued a
TRO on January 14, 1993, directing the City to cease and desist from enforcing the
Ordinance.13 The City filed an Answer dated January 22, 1993 alleging that the Ordinance is
a legitimate exercise of police power.14
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to
desist from the enforcement of the Ordinance. 15 A month later, on March 8, 1993, the
Solicitor General filed his Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for
decision without trial as the case involved a purely legal question. 16 On October 20, 1993,
the RTC rendered a decision declaring the Ordinance null and void. The dispositive portion
of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is
hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby made permanent.
SO ORDERED.17
The RTC noted that the ordinance "strikes at the personal liberty of the individual
guaranteed and jealously guarded by the Constitution." 18 Reference was made to the
provisions of the Constitution encouraging private enterprises and the incentive to needed
investment, as well as the right to operate economic enterprises. Finally, from the
observation that the illicit relationships the Ordinance sought to dissuade could nonetheless
Josef Elvin Campos
be consummated by simply paying for a 12-hour stay, the RTC likened the law to the
ordinance annulled in Ynot v. Intermediate Appellate Court, 19 where the legitimate purpose
of preventing indiscriminate slaughter of carabaos was sought to be effected through an
inter-province ban on the transport of carabaos and carabeef.
The City later filed a petition for review on certiorari with the Supreme Court.20 The petition
was docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the
Court treated the petition as a petition for certiorari and referred the petition to the Court of
Appeals.21
Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of
police power pursuant to Section 458 (4)(iv) of the Local Government Code which confers
on cities, among other local government units, the power:
[To] regulate the establishment, operation and maintenance of cafes, restaurants,

beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar
establishments, including tourist guides and transports. 22
The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III,
Section 18(kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the
furtherance of the prosperity and the promotion of the morality, peace, good order, comfort,
convenience and general welfare of the city and its inhabitants, and such others as be
necessary to carry into effect and discharge the powers and duties conferred by this
Chapter; and to fix penalties for the violation of ordinances which shall not exceed two
hundred pesos fine or six months imprisonment, or both such fine and imprisonment for a
single offense.23
Petitioners argued that the Ordinance is unconstitutional and void since it violates the right
to privacy and the freedom of movement; it is an invalid exercise of police power; and it is
an unreasonable and oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of
the Ordinance.24 First, it held that the Ordinance did not violate the right to privacy or the
freedom of movement, as it only penalizes the owners or operators of establishments that
admit individuals for short time stays. Second, the virtually limitless reach of police power is
only constrained by having a lawful object obtained through a lawful method. The lawful
objective of the Ordinance is satisfied since it aims to curb immoral activities. There is a
lawful method since the establishments are still allowed to operate. Third, the adverse effect
on the establishments is justified by the well-being of its constituents in general. Finally, as
held in Ermita-Malate Motel Operators Association v. City Mayor of Manila, liberty is
regulated by law.
TC, WLC and STDC come to this Court via petition for review on certiorari. 25 In their petition
and Memorandum, petitioners in essence repeat the assertions they made before the Court
of Appeals. They contend that the assailed Ordinance is an invalid exercise of police power.
II.
We must address the threshold issue of petitioners’ standing. Petitioners allege that as
owners of establishments offering "wash-up" rates, their business is being unlawfully
interfered with by the Ordinance. However, petitioners also allege that the equal protection
rights of their clients are also being interfered with. Thus, the crux of the matter is whether
or not these establishments have the requisite standing to plead for protection of their
patrons' equal protection rights.
Standing or locus standi is the ability of a party to demonstrate to the court sufficient
connection to and harm from the law or action challenged to support that party's
participation in the case. More importantly, the doctrine of standing is built on the principle
of separation of powers,26 sparing as it does unnecessary interference or invalidation by the
judicial branch of the actions rendered by its co-equal branches of government.
The requirement of standing is a core component of the judicial system derived directly from
the Constitution.27 The constitutional component of standing doctrine incorporates concepts
which concededly are not susceptible of precise definition. 28 In this jurisdiction, the extancy
Josef Elvin Campos
of "a direct and personal interest" presents the most obvious cause, as well as the standard
test for a petitioner's standing. 29 In a similar vein, the United States Supreme Court
reviewed and elaborated on the meaning of the three constitutional standing requirements
of injury, causation, and redressability in Allen v. Wright.30
Nonetheless, the general rules on standing admit of several exceptions such as the
overbreadth doctrine, taxpayer suits, third party standing and, especially in the Philippines,
the doctrine of transcendental importance. 31
For this particular set of facts, the concept of third party standing as an exception and the
overbreadth doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court
wrote that: "We have recognized the right of litigants to bring actions on behalf of third
parties, provided three important criteria are satisfied: the litigant must have suffered an
‘injury-in-fact,’ thus giving him or her a "sufficiently concrete interest" in the outcome of the
issue in dispute; the litigant must have a close relation to the third party; and there must
exist some hindrance to the third party's ability to protect his or her own interests." 33 Herein,
it is clear that the business interests of the petitioners are likewise injured by the Ordinance.
They rely on the patronage of their customers for their continued viability which appears to
be threatened by the enforcement of the Ordinance. The relative silence in constitutional
litigation of such special interest groups in our nation such as the American Civil Liberties
Union in the United States may also be construed as a hindrance for customers to bring
suit.34
American jurisprudence is replete with examples where parties-in-interest were allowed
standing to advocate or invoke the fundamental due process or equal protection claims of
other persons or classes of persons injured by state action. In Griswold v. Connecticut,35 the
United States Supreme Court held that physicians had standing to challenge a reproductive
health statute that would penalize them as accessories as well as to plead the constitutional
protections available to their patients. The Court held that:
"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected
unless those rights are considered in a suit involving those who have this kind of
confidential relation to them."36
An even more analogous example may be found in Craig v. Boren,37 wherein the United
States Supreme Court held that a licensed beverage vendor has standing to raise the equal
protection claim of a male customer challenging a statutory scheme prohibiting the sale of
beer to males under the age of 21 and to females under the age of 18. The United States
High Court explained that the vendors had standing "by acting as advocates of the rights of
third parties who seek access to their market or function." 38
Assuming arguendo that petitioners do not have a relationship with their patrons for the
former to assert the rights of the latter, the overbreadth doctrine comes into play. In
overbreadth analysis, challengers to government action are in effect permitted to raise the
rights of third parties. Generally applied to statutes infringing on the freedom of speech, the
overbreadth doctrine applies when a statute needlessly restrains even constitutionally
guaranteed rights.39 In this case, the petitioners claim that the Ordinance makes a sweeping
intrusion into the right to liberty of their clients. We can see that based on the allegations in
the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of their
clients to patronize their establishments for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to mind not only the
recent City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel
Operations Association, Inc., v. Hon. City Mayor of Manila. 40 Ermita-Malate concerned the
City ordinance requiring patrons to fill up a prescribed form stating personal information
such as name, gender, nationality, age, address and occupation before they could be
admitted to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to
minimize certain practices deemed harmful to public morals. A purpose similar to the
annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar
Josef Elvin Campos
establishments in the Ermita-Malate area. However, the constitutionality of the ordinance
in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case at bar goes beyond the
singularity of the localities covered under the respective ordinances. All three ordinances
were enacted with a view of regulating public morals including particular illicit activity in
transient lodging establishments. This could be described as the middle case, wherein there
is no wholesale ban on motels and hotels but the services offered by these establishments
have been severely restricted. At its core, this is another case about the extent to which the
State can intrude into and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of decisions including City of
Manila has held that for an ordinance to be valid, it must not only be within the corporate
powers of the local government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive requirements: (1) must
not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3)
must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must
be general and consistent with public policy; and (6) must not be unreasonable. 41
The Ordinance prohibits two specific and distinct business practices, namely wash rate
admissions and renting out a room more than twice a day. The ban is evidently sought to be
rooted in the police power as conferred on local government units by the Local Government
Code through such implements as the general welfare clause.
A.
Police power, while incapable of an exact definition, has been purposely veiled in general
terms to underscore its comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response as the conditions warrant. 42 Police power is
based upon the concept of necessity of the State and its corresponding right to protect itself
and its people.43 Police power has been used as justification for numerous and varied
actions by the State. These range from the regulation of dance halls, 44 movie theaters,45 gas
stations46 and cockpits.47 The awesome scope of police power is best demonstrated by the
fact that in its hundred or so years of presence in our nation’s legal system, its use has
rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves,
are unimpeachable and certainly fall within the ambit of the police power of the State. Yet
the desirability of these ends do not sanctify any and all means for their achievement.
Those means must align with the Constitution, and our emerging sophisticated analysis of
its guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of
Macchiavelli, and, sometimes even, the political majorities animated by his cynicism.
Even as we design the precedents that establish the framework for analysis of due process
or equal protection questions, the courts are naturally inhibited by a due deference to the
co-equal branches of government as they exercise their political functions. But when we are
compelled to nullify executive or legislative actions, yet another form of caution emerges. If
the Court were animated by the same passing fancies or turbulent emotions that motivate
many political decisions, judicial integrity is compromised by any perception that the
judiciary is merely the third political branch of government. We derive our respect and good
standing in the annals of history by acting as judicious and neutral arbiters of the rule of law,
and there is no surer way to that end than through the development of rigorous and
sophisticated legal standards through which the courts analyze the most fundamental and
far-reaching constitutional questions of the day.
B.
The primary constitutional question that confronts us is one of due process, as guaranteed
under Section 1, Article III of the Constitution. Due process evades a precise
definition.48 The purpose of the guaranty is to prevent arbitrary governmental encroachment
against the life, liberty and property of individuals. The due process guaranty serves as a
protection against arbitrary regulation or seizure. Even corporations and partnerships are
protected by the guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as imposing two related but
distinct restrictions on government, "procedural due process" and "substantive due
process." Procedural due process refers to the procedures that the government must follow
Josef Elvin Campos
before it deprives a person of life, liberty, or property. 49 Procedural due process concerns
itself with government action adhering to the established process when it makes an
intrusion into the private sphere. Examples range from the form of notice given to the level
of formality of a hearing.
If due process were confined solely to its procedural aspects, there would arise absurd
situation of arbitrary government action, provided the proper formalities are followed.
Substantive due process completes the protection envisioned by the due process clause. It
inquires whether the government has sufficient justification for depriving a person of life,
liberty, or property.50
The question of substantive due process, moreso than most other fields of law, has
reflected dynamism in progressive legal thought tied with the expanded acceptance of
fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted
with a more rigorous level of analysis before it can be upheld. The vitality though of
constitutional due process has not been predicated on the frequency with which it has been
utilized to achieve a liberal result for, after all, the libertarian ends should sometimes yield to
the prerogatives of the State. Instead, the due process clause has acquired potency
because of the sophisticated methodology that has emerged to determine the proper metes
and bounds for its application.
C.
The general test of the validity of an ordinance on substantive due process grounds is best
tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme
Court in U.S. v. Carolene Products.51 Footnote 4 of the Carolene Products case
acknowledged that the judiciary would defer to the legislature unless there is a
discrimination against a "discrete and insular" minority or infringement of a "fundamental
right."52 Consequently, two standards of judicial review were established: strict scrutiny for
laws dealing with freedom of the mind or restricting the political process, and the rational
basis standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny, was later adopted by
the U.S. Supreme Court for evaluating classifications based on gender 53 and
legitimacy.54 Immediate scrutiny was adopted by the U.S. Supreme Court in Craig, 55 after
the Court declined to do so in Reed v. Reed. 56 While the test may have first been articulated
in equal protection analysis, it has in the United States since been applied in all substantive
due process cases as well.
We ourselves have often applied the rational basis test mainly in analysis of equal
protection challenges.57 Using the rational basis examination, laws or ordinances are upheld
if they rationally further a legitimate governmental interest. 58 Under intermediate review,
governmental interest is extensively examined and the availability of less restrictive
measures is considered.59 Applying strict scrutiny, the focus is on the presence of
compelling, rather than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the
regulation of fundamental freedoms. 60 Strict scrutiny is used today to test the validity of laws
dealing with the regulation of speech, gender, or race as well as other fundamental rights as
expansion from its earlier applications to equal protection. 61 The United States Supreme
Court has expanded the scope of strict scrutiny to protect fundamental rights such as
suffrage,62 judicial access63 and interstate travel.64
If we were to take the myopic view that an Ordinance should be analyzed strictly as to its
effect only on the petitioners at bar, then it would seem that the only restraint imposed by
the law which we are capacitated to act upon is the injury to property sustained by the
petitioners, an injury that would warrant the application of the most deferential standard –
the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to
invoke as well the constitutional rights of their patrons – those persons who would be
deprived of availing short time access or wash-up rates to the lodging establishments in
question.
Viewed cynically, one might say that the infringed rights of these customers were are trivial
since they seem shorn of political consequence. Concededly, these are not the sort of
cherished rights that, when proscribed, would impel the people to tear up their cedulas. Still,
the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental
Josef Elvin Campos
freedoms – which the people reflexively exercise any day without the impairing awareness
of their constitutional consequence – that accurately reflect the degree of liberty enjoyed by
the people. Liberty, as integrally incorporated as a fundamental right in the Constitution, is
not a Ten Commandments-style enumeration of what may or what may not be done; but
rather an atmosphere of freedom where the people do not feel labored under a Big Brother
presence as they interact with each other, their society and nature, in a manner innately
understood by them as inherent, without doing harm or injury to others.
D.
The rights at stake herein fall within the same fundamental rights to liberty which we upheld
in City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the
right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be
dwarfed into mere freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the facilities with which he has been endowed
by his Creator, subject only to such restraint as are necessary for the common welfare."[ 65]
In accordance with this case, the rights of the citizen to be free to use his faculties in all
lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and
to pursue any avocation are all deemed embraced in the concept of liberty.[ 66]
The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the
meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty . . . guaranteed [by
the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily
restraint but also the right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience, and generally to
enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness
by free men. In a Constitution for a free people, there can be no doubt that the meaning of
"liberty" must be broad indeed.67 [Citations omitted]
It cannot be denied that the primary animus behind the ordinance is the curtailment of
sexual behavior. The City asserts before this Court that the subject establishments "have
gained notoriety as venue of ‘prostitution, adultery and fornications’ in Manila since they
‘provide the necessary atmosphere for clandestine entry, presence and exit and thus
became the ‘ideal haven for prostitutes and thrill-seekers.’" 68 Whether or not this depiction of
a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior
among willing married or consenting single adults which is constitutionally protected 69 will be
curtailed as well, as it was in the City of Manila case. Our holding therein retains
significance for our purposes:
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski,
so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his
isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which
his civic obligations are built. He cannot abandon the consequences of his isolation, which
are, broadly speaking, that his experience is private, and the will built out of that experience
personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set
by the will of others, he ceases to be a master of himself. I cannot believe that a man no
longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of
which should be justified by a compelling state interest. Morfe accorded recognition to the
right to privacy independently of its identification with liberty; in itself it is fully deserving of
constitutional protection. Governmental powers should stop short of certain intrusions into
the personal life of the citizen.70
We cannot discount other legitimate activities which the Ordinance would proscribe or
impair. There are very legitimate uses for a wash rate or renting the room out for more than
twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the
Josef Elvin Campos
power is momentarily out in their homes. In transit passengers who wish to wash up and
rest between trips have a legitimate purpose for abbreviated stays in motels or hotels.
Indeed any person or groups of persons in need of comfortable private spaces for a span of
a few hours with purposes other than having sex or using illegal drugs can legitimately look
to staying in a motel or hotel as a convenient alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product
and the petitioners of lucrative business ties in with another constitutional requisite for the
legitimacy of the Ordinance as a police power measure. It must appear that the interests of
the public generally, as distinguished from those of a particular class, require an
interference with private rights and the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of private rights. 71 It must also be
evident that no other alternative for the accomplishment of the purpose less intrusive of
private rights can work. More importantly, a reasonable relation must exist between the
purposes of the measure and the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded. 72
Lacking a concurrence of these requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power
is subject to judicial review when life, liberty or property is affected. 73 However, this is not in
any way meant to take it away from the vastness of State police power whose exercise
enjoys the presumption of validity.74
Similar to the Comelec resolution requiring newspapers to donate advertising space to
candidates, this Ordinance is a blunt and heavy instrument. 75 The Ordinance makes no
distinction between places frequented by patrons engaged in illicit activities and patrons
engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities
are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes
no classification of places of lodging, thus deems them all susceptible to illicit patronage
and subject them without exception to the unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its
longtime home,76 and it is skeptical of those who wish to depict our capital city – the Pearl of
the Orient – as a modern-day Sodom or Gomorrah for the Third World set. Those still
steeped in Nick Joaquin-dreams of the grandeur of Old Manila will have to accept that
Manila like all evolving big cities, will have its problems. Urban decay is a fact of mega cities
such as Manila, and vice is a common problem confronted by the modern metropolis
wherever in the world. The solution to such perceived decay is not to prevent legitimate
businesses from offering a legitimate product. Rather, cities revive themselves by offering
incentives for new businesses to sprout up thus attracting the dynamism of individuals that
would bring a new grandeur to Manila.
The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in
fact be diminished simply by applying existing laws. Less intrusive measures such as
curbing the proliferation of prostitutes and drug dealers through active police work would be
more effective in easing the situation. So would the strict enforcement of existing laws and
regulations penalizing prostitution and drug use. These measures would have minimal
intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is
apparent that the Ordinance can easily be circumvented by merely paying the whole day
rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and
prostitutes can in fact collect "wash rates" from their clientele by charging their customers a
portion of the rent for motel rooms and even apartments.
IV.
We reiterate that individual rights may be adversely affected only to the extent that may
fairly be required by the legitimate demands of public interest or public welfare. The State is
a leviathan that must be restrained from needlessly intruding into the lives of its citizens.
However well-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments as well as their patrons. The Ordinance
needlessly restrains the operation of the businesses of the petitioners as well as restricting
the rights of their patrons without sufficient justification. The Ordinance rashly equates wash
rates and renting out a room more than twice a day with immorality without accommodating
innocuous intentions.
The promotion of public welfare and a sense of morality among citizens deserves the full
endorsement of the judiciary provided that such measures do not trample rights this Court is
sworn to protect.77 The notion that the promotion of public morality is a function of the State
Josef Elvin Campos
is as old as Aristotle.78 The advancement of moral relativism as a school of philosophy does
not de-legitimize the role of morality in law, even if it may foster wider debate on which
particular behavior to penalize. It is conceivable that a society with relatively little shared
morality among its citizens could be functional so long as the pursuit of sharply variant
moral perspectives yields an adequate accommodation of different interests. 79
To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is
more accurately interpreted as meaning that efforts to legislate morality will fail if they are
widely at variance with public attitudes about right and wrong. 80 Our penal laws, for one, are
founded on age-old moral traditions, and as long as there are widely accepted distinctions
between right and wrong, they will remain so oriented.
Yet the continuing progression of the human story has seen not only the acceptance of the
right-wrong distinction, but also the advent of fundamental liberties as the key to the
enjoyment of life to the fullest. Our democracy is distinguished from non-free societies not
with any more extensive elaboration on our part of what is moral and immoral, but from our
recognition that the individual liberty to make the choices in our lives is innate, and
protected by the State. Independent and fair-minded judges themselves are under a moral
duty to uphold the Constitution as the embodiment of the rule of law, by reason of their
expression of consent to do so when they take the oath of office, and because they are
entrusted by the people to uphold the law.81
Even as the implementation of moral norms remains an indispensable complement to
governance, that prerogative is hardly absolute, especially in the face of the norms of due
process of liberty. And while the tension may often be left to the courts to relieve, it is
possible for the government to avoid the constitutional conflict by employing more judicious,
less drastic means to promote morality.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals
is REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9,
is REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No
pronouncement as to costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
Social Justice Society v. Atienza (G.R. No. 156052, February 13, 2008; see
Social Justice Society (SJS) Officers v. Lim/Atienza (G.R. No. 187836, 25
November 2014)
G.R. No. 187836 November 25, 2014
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS, NAMELY, SAMSON S. ALCANTARA,
and VLADIMIR ALARIQUE T. CABIGAO, Petitioners,
vs.
ALFREDO S. LIM, in his capacity as mayor of the City of Manila, Respondent.
x-----------------------x
G.R. No. 187916
JOSE L. ATIENZA, JR., BIENVINIDO M. ABANTE, MA. LOURDES M. ISIP-GARCIA,
RAFAEL P. BORROMEO JOCELYN DAWIS-ASUNCION, minors MARIAN REGINA B.
TARAN, MACAILA RICCI B. TARAN, RICHARD KENNETH B. TARAN, represented and
joined by their parents RICHARD AND MARITES TARAN, minors CZARINA
ALYSANDRA C. RAMOS, CEZARAH ADRIANNA C. RAMOS, and CRISTEN AIDAN C.
RAMOS represented and joined by their mother DONNA C. RAMOS, minors JAZMIN
SYLLITA T. VILA AND ANTONIO T. CRUZ IV, represented and joined by their mother
MAUREEN C. TOLENTINO, Petitioners,
vs.
MAYOR ALFREDO S. LIM, VICE MAYOR FRANCISCO DOMAGOSO, COUNCILORS
ARLENE W. KOA, MOISES T. LIM, JESUS FAJARDO LOUISITO N. CHUA,
VICTORIANO A. MELENDEZ, JOHN MARVIN C. NIETO, ROLANDO M. VALERIANO,
RAYMUNDO R. YUPANGCO, EDWARD VP MACEDA, RODERICK D. V ALBUENA,
JOSEFINA M. SISCAR, SALVADOR PHILLIP H. LACUNA, LUCIANO M. VELOSO,
CARLO V. LOPEZ, ERNESTO F. RIVERA,1 DANILO VICTOR H. LACUNA, JR.,
ERNESTO G. ISIP, HONEY H. LACUNA-PANGAN, ERNESTO M. DIONISO, JR. and
ERICK IAN O. NIEVA, Respondents.
x-----------------------x
Josef Elvin Campos
CHEVRON PHILIPPINES INC., PETRON CORPORATION AND PILIPINAS SHELL
PETROLEUM CORPORATION, Intervenors.
DECISION
PEREZ, J.:
Challenged in these consolidated petitions2 is the validity of Ordinance No. 8187 3 entitled
"AN ORDINANCE AMENDING ORDINANCE NO. 8119, OTHERWISE KNOWN AS ‘THE
MANILA COMPREHENSIVE LAND USE PLAN AND ZONING ORDINANCE OF 2006,’ BY
CREATING A MEDIUM INDUSTRIAL ZONE (1-2) AND HEAVY INDUSTRIAL ZONE (1-3),
AND PROVIDING FOR ITS ENFORCEMENT" enacted by the Sangguniang Panlungsod of
Manila (Sangguniang Panlungsod) on 14 May 2009.
The creation of a medium industrial zone (1-2) and heavy industrial zone (1-3) effectively
lifted the prohibition against owners and operators of businesses, including herein
intervenors Chevron Philippines, Inc. (Chevron), Pilipinas Shell Petroleum Corporation
(Shell), and Petron Corporation (Petron), collectively referred to as the oil companies, from
operating in the designated commercial zone – an industrial zone prior to the enactment of
Ordinance No. 80274 entitled "AN ORDINANCE RECLASSIFYING THE LAND USE OF
THAT PORTION OF LAND BOUNDED BY THE PASIGRIVER IN THE NORTH, PNR
RAILROAD TRACK IN THE EAST, BEATA ST. IN THE SOUTH, PALUMPONG ST. IN THE
SOUTHWEST AND ESTERO DE PANDACAN IN THE WEST, PNR RAILROAD IN THE
NORTHWEST AREA, ESTERO DE PANDACAN IN THE NORTHEAST, PASIG RIVER IN
THE SOUTHEAST AND DR. M. L. CARREON IN THE SOUTHWEST, THE AREA OF
PUNTA, STA.ANA BOUNDED BY THE PASIG RIVER, MARCELINO OBRERO ST., MAYO
28 ST. AND THE F. MANALO STREET FROM INDUSTRIAL II TO COMMERCIAL I," and
Ordinance No. 81195 entitled "AN ORDINANCE ADOPTING THE MANILA
COMPREHENSIVE LAND USE PLAN AND ZONING REGULATIONS OF 2006 AND
PROVIDING FOR THE ADMINISTRATION, ENFORCEMENT AND AMENDMENT
THERETO."
The Parties
Petitioners allege the parties’ respective capacity to sue and be sued, viz:
Petitioners Residence Suing capacity aside from being
in Manila residents of Manila other personal
circumstances
G.R. No. 187836
SJS Officer Samson S. Alcantara Not mentioned Manila taxpayer;
(Alcantara) in the petition; One of the petitioners in SJS v.
holding office in Atienza (G.R. No. 156052);*
Ermita, Manila Pesident of ABAKADA GURO
PARTY LIST with members who
are residents of the City of Manila
SJS Officer Vladimir Alarique T. Pandacan One of the petitioners in SJS v.
Cabigao (Cabigao) Atienza (G.R. No. 156052)
* The allegation is inaccurate. SJS Officer Alcantara is actually one of the counsels for
petitioner SJS in G.R. No. 156052. The petitioners in that case are the SJS itself, Cabigao
and Bonifacio S. Tumbokon (Tumbokon).
G.R. No. 187916
Former Mayor Jose L. Atienza, Jr. San Andres Former Mayor of Manila;
(Mayor Atienza) Secretary of Department of
Environment and Natural
Resources (DENR)
Bienvinido M. Abante Sta. Ana Citizen and taxpayer;
member of the House of
Representatives
Ma. Lourdes M. Isip-Garcia San Miguel Incumbent City Councilor of the
City of Manila
Rafael P. Borromeo Paco Incumbent City Councilor of the
City of Manila
Jocelyn Dawis-Asuncion Sta. Mesa Incumbent City Councilor of the
City of Manila
Minors Marian Regina B. Taran, Paco Citizens, real estate owners and
Josef Elvin Campos
Macalia Ricci B. Taran, Richard taxpayers
Kenneth B. Taran, represented
and joined by their parents
Richard and Marites Taran
Minors Czarina Alysandra C. Tondo Citizens, real estate owners and
Ramos, Cezarah Adrianna C. taxpayers
Ramos, and Cristen Aidan C.
Ramos represented and joined by
their mother Donna c. Ramos
Minors Jasmin Syllita T. Vila and Sta. Ana Citizens, real estate owners and
Antonio T. Cruz IV, represented taxpayers
and joined by their mother
Maureen C. Tolentino
Respondents Sued in their capacity as

G.R. Nos. 187836 and 187916
Former Mayor Alfredo S. Lim (Mayor Lim) Incumbent Mayor of Manila at
the time of the filing of the
present petitions
Respondents Sued in their capacity as
G.R. No. 187916

Vice-Mayor Francisco Domagoso (Vice-Mayor Vice-Mayor and Presiding Officer
Domagoso) of the City Council of Manila
Arlene Woo Koa Principal author of City
Ordinance No. 8187
Moises T. Lim, Jesus Fajardo, Louisito N. Chua, Personal and official capacities as
Victoriano A. Melendez, John Marvin Nieto, councilors who voted and
Rolando M. Valeriano, Raymondo R. Yupangco, approved City Ordinance No.
Edward VP Maceda, Roderick D. Valbuena, 8187
Josefina M. Siscar, Phillip H. Lacuna, Luciano M.
Veloso, Carlo V. Lopez, Ernesto F. Rivera, 6 Danilo
Victor H. Lacuna, Jr., Ernesto G. Isip, Honey H.
Lacuna-Pangan, Ernesto M. Dionisio, Jr., Erick Ian
O. Nieva
The following intervenors, all of which are corporations organized under Philippine laws,
intervened:7
Intervenors Nature of Business
Chevron Philippines, importing, distributing and marketing of petroleum

Inc. (CHEVRON) products in the Philippines since 1922
Pilipinas Shell Petroleum manufacturing, refining, importing, distributing and
Corporation (SHELL) marketing of petroleum products in the Philippines
Petron Corporation (PETRON) manufacturing, refining, importing, distributing and
marketing of petroleum products in the Philippines
They claim that their rights with respect to the oil depots in Pandacan would be directly
affected by the outcome of these cases.
The Antecedents
These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza,
Jr.8 (hereinafter referred to asG.R. No. 156052), where the Court found: (1) that the
ordinance subject thereof – Ordinance No. 8027 – was enacted "to safeguard the rights to
life, security and safety of the inhabitants of Manila;" 9 (2) that it had passed the tests of a
valid ordinance; and (3) that it is not superseded by Ordinance No. 8119. 10 Declaring that it
is constitutional and valid,11 the Court accordingly ordered its immediate enforcement with a
specific directive on the relocation and transfer of the Pandacan oil terminals. 12
Josef Elvin Campos
Highlighting that the Court has soruled that the Pandacan oil depots should leave, herein
petitioners now seek the nullification of Ordinance No. 8187, which contains provisions
contrary to those embodied in Ordinance No. 8027. Allegations of violation of the right to
health and the right to a healthful and balanced environment are also included.
For a better perspective of the facts of these cases, we again trace the history of the
Pandacan oil terminals, aswell as the intervening events prior to the reclassification of the
land use from Industrial II to Commercial I under Ordinance No. 8027 until the creation of
Medium Industrial Zone and Heavy Industrial Zone pursuant to Ordinance No. 8187.
History of the Pandacan Oil Terminals
We quote the following from the Resolution of the Court in G.R. No. 156052:
Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig
[R]iver. Atthe turn of the twentieth century, Pandacan was unofficially designated as the
industrial center of Manila. The area, then largely uninhabited, was ideal for various
emerging industries as the nearby river facilitated the transportation of goods and products.
In the 1920s, it was classifiedas an industrial zone. Among its early industrial settlers
werethe oil companies. x x x On December 8, 1941, the Second World War reached the
shores of the Philippine Islands. x x x [I]n their zealous attempt to fend off the Japanese
Imperial Army, the United States Army took control of the Pandacan Terminals and hastily
made plans to destroy the storage facilities to deprive the advancing Japanese Army of a
valuable logistics weapon. The U.S. Army burned unused petroleum, causing a frightening
conflagration. Historian Nick Joaquin recounted the events as follows:
After the USAFFE evacuated the City late in December 1941, all army fuel storage dumps
were set on fire. The flames spread, enveloping the City in smoke, setting even the rivers
ablaze, endangering bridges and all riverside buildings. … For one week longer, the "open
city" blazed—a cloud of smoke by day, a pillar of fire by night.
The fire consequently destroyed the Pandacan Terminals and rendered its network of
depots and service stations inoperative.
After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself.
The three major oil companies resumed the operation of their depots. But the district was no
longer a sparsely populated industrial zone; it had evolved into a bustling, hodgepodge
community. Today, Pandacan has become a densely populated area inhabited by about
84,000 people, majority of whom are urban poor who call it home. Aside from numerous
industrial installations, there are also small businesses, churches, restaurants, schools,
daycare centers and residences situated there. Malacañang Palace, the official residence of
the President of the Philippines and the seat of governmental power, is just two kilometers
away. There is a private school near the Petron depot. Along the walls of the Shell facility
are shanties of informal settlers. More than 15,000 students are enrolled in elementary and
high schools situated near these facilities. A university with a student population of about
25,000 is located directly across the depot on the banks of the Pasig [R]iver.
The 36-hectare Pandacan Terminals house the oil companies’ distribution terminals and
depot facilities.1âwphi1 The refineries of Chevron and Shell in Tabangao and Bauan, both
in Batangas, respectively, are connected to the Pandacan Terminals through a 114-
kilometer underground pipeline system. Petron’s refinery in Limay, Bataan, on the other
hand, also services the depot. The terminals store fuel and other petroleum products and
supply 95% of the fuel requirements of Metro Manila, 50% of Luzon’s consumption and 35%
nationwide. Fuel can also be transported through barges along the Pasig [R]iver ortank
trucks via the South Luzon Expressway.13 (Citations omitted)
Memorandum of Agreement (MOA)
dated 12 October 2001 between the oil companies
and the Department of Energy (DOE)
On 12 October 2001, the oil companies and the DOE entered into a MOA 14 "in light of
recent international developments involving acts of terrorism on civilian and government
landmarks,"15 "potential new security risks relating to the Pandacan oil terminals and the
impact on the surrounding community which may be affected," 16 and "to address the
perceived risks posed by the proximity of communities, businesses and offices to the
Pandacan oil terminals, consistent with the principle of sustainable development." 17 The
stakeholders acknowledged that "there is a need for a comprehensive study to address the
economic, social, environmental and security concerns with the end in view of formulating a
Master Plan to address and minimize the potential risks and hazards posed by the proximity
of communities, businesses and offices to the Pandacan oil terminals without adversely
affecting the security and reliability of supply and distribution of petroleum products to Metro
Manila and the rest of Luzon, and the interests of consumers and users of such petroleum
products in those areas."18
Josef Elvin Campos
The enactment of Ordinance No. 8027
against the continued stay of the oil depots
The MOA, however, was short-lived.
On 20 November 2001, during the incumbency of former Mayor Jose L. Atienza, Jr. (Mayor
Atienza) – nowone of the petitioners in G.R. No. 187916 – the Sangguniang Panlungsod
enacted Ordinance No. 802719 reclassifying the use of the land in Pandacan, Sta. Ana, and
its adjoining areas from Industrial II to Commercial I.
The owners and operators of the businesses thus affected by the reclassification were given
six months from the date of effectivity of the Ordinance within which to stop the operation of
their businesses.
Nevertheless, the oil companies weregranted an extension of until 30 April 2003 within
which to comply with the Ordinance pursuant to the following:
(1) Memorandum of Understanding (MOU)20 dated 26 June 2002 between the City of
Manila and the Department of Energy (DOE), on the one hand, and the oil
companies, on the other, where the parties agreed that "the scaling down of the
Pandacan Terminals [was] the most viable and practicable option" 21 and committed
to adopt specific measures22 consistent with the said objective;
(2) Resolution No. 97 dated 25 July 2002 23 of the Sangguniang Panlungsod, which
ratified the 26 June 2002 MOU but limited the extension of the period within which to
comply to six months from 25 July 2002; and
(3) Resolution No. 13 dated 30 January 2003 24 of the Sanguniang Panlungsod,
which extended the validity of Resolution No. 97 to 30 April 2003, authorized then
Mayor Atienza to issue special business permits to the oil companies, and called for
a reassessment of the ordinance.
Social Justice Society v. Atienza (G.R. No. 156052):
The filing of an action for mandamus
before the Supreme Court
to enforce Ordinance No. 8027
In the interim, an original action for mandamus entitled Social Justice Society v. Atienza, Jr.
docketed as G.R. No. 15605225 was filed on 4 December 2002 by Tumbokon and herein
petitioners SJS and Cabigao against then Mayor Atienza. The petitioners sought to compel
former Mayor Atienza to enforce Ordinance No. 8027 and cause the immediate removal of
the terminals of the oil companies.26
Issuance by the Regional Trial Court (RTC)
of writs of preliminary prohibitory injunction
and preliminary mandatory injunction,
and status quo order in favor of the oil companies
Unknown to the Court, during the pendency of G.R. No. 156052, and before the expiration
of the validity ofResolution No. 13, the oil companies filed the following actions before the
Regional Trial Court of Manila: (1) an action for the annulment of Ordinance No. 8027 with
application for writs of preliminary prohibitory injunction and preliminary mandatory
injunction – by Chevron; (2) a petition for prohibition and mandamus also for the annulment
of the Ordinance with application for writs of preliminary prohibitory injunction and
preliminary mandatory injunction – by Shell; and (3) a petition assailing the validity of the
Ordinance with prayer for the issuance of a writ of preliminary injunction and/or temporary
restraining order (TRO) – by Petron.27
Writs of preliminary prohibitory injunction and preliminary mandatory injunction were issued
in favor of Chevron and Shell on 19 May 2003. Petron, on the other hand, obtained a status
quo order on 4 August 2004.28
The Enactment of Ordinance No. 8119 defining the Manila land use plan and zoning
regulations
On 16 June 2006, then Mayor Atienza approved Ordinance No. 8119 entitled "An
Ordinance Adopting the Manila Comprehensive Land Use Plan and Zoning Regulations of
2006 and Providing for the Administration, Enforcement and Amendment thereto." 29
Pertinent provisions relative to these cases are the following:
(a) Article IV, Sec. 730 enumerating the existing zones or districts in the City of
Manila;
(b) Article V, Sec. 23 31 designating the Pandacan oil depot area as a "Planned Unit
Development/Overlay Zone" (O-PUD); and
(c) the repealing clause, which reads:
SEC. 84. Repealing Clause. – All ordinances, rules, regulations in conflict with the
provisions of this Ordinance are hereby repealed; PROVIDED, That the rights that are
vested upon the effectivity of this Ordinance shall not be impaired. 32
Josef Elvin Campos
7 March 2007 Decision in G.R. No. 156052;
The mayor has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the Pandacan terminals
On 7 March 2007, the Court granted the petition for mandamus, and directed then
respondent Mayor Atienza to immediately enforce Ordinance No. 8027. 33
Confined to the resolution of the following issues raised by the petitioners, to wit:
1. whether respondent [Mayor Atienza]has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the Pandacan Terminals, and
2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or
repeal Ordinance No. 8027.34
the Court declared:
x x x [T]he Local Government Code imposes upon respondent the duty, as city mayor, to
"enforce all laws and ordinances relative to the governance of the city." One of these is
Ordinance No. 8027. As the chief executive of the city, he has the duty to enforce
Ordinance No. 8027 as long as it has not been repealed by the Sanggunian or annulled by
the courts. He has no other choice. It is his ministerial duty to do so. x x x
xxxx
The question now is whether the MOU entered into by respondent with the oil companies
and the subsequent resolutions passed by the Sanggunianhave made the respondent’s
duty to enforce Ordinance No. 8027 doubtful, unclear or uncertain. x x x
We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with
Ordinance No. 8027, the resolutions which ratified it and made it binding on the Cityof
Manila expressly gave it full force and effect only until April 30, 2003. Thus, at present, there
is nothing that legally hinders respondent from enforcing Ordinance No. 8027.
Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world,
witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World
Trade Center in New York City. The objective of the ordinance is toprotect the residents of
Manila from the catastrophic devastation that will surely occur in case of a terrorist attack on
the Pandacan Terminals. No reason exists why such a protective measure should be
delayed.35 (Emphasis supplied; citations omitted)
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 is constitutional
The oil companies and the Republic of the Philippines, represented by the DOE, filed their
motions for leave to intervene and for reconsideration of the 7 March 2007 Decision. During
the oral arguments, the parties submitted to the power of the Court torule on the
constitutionality and validity of the assailed Ordinance despite the pendency of the cases in
the RTC.36
On 13 February 2008, the Court granted the motions for leave to intervene of the oil
companies and the Republic of the Philippines but denied their respective motions for
reconsideration. The dispositive portion of the Resolution reads:
WHEREFORE, x x x
We reiterate our order to respondent Mayor of the City of Manila to enforce Ordinance No.
8027. In coordination with the appropriate agencies and other parties involved, respondent
Mayor is hereby ordered to oversee the relocation and transfer of the Pandacan Terminals
out of its present site.37
13 February 2008 Resolution in G.R. No. 156052; Ordinance No. 8027 was not impliedly
repealed by Ordinance No. 8119
The Court also ruled that Ordinance No. 8027 was not impliedly repealed by Ordinance No.
8119. On this score, the Court ratiocinated:
For the first kind of implied repeal, there must be an irreconcilable conflict between the two
ordinances. There is no conflict between the two ordinances. Ordinance No. 8027
reclassified the Pandacan area from Industrial II to Commercial I. Ordinance No. 8119,
Section 23, designated it as a "Planned Unit Development/Overlay Zone (O-PUD)." In its
Annex "C" which defined the zone boundaries, the Pandacan area was shown to be within
the "High Density Residential/Mixed Use Zone (R-3/MXD)." x x x [B]oth ordinances actually
have a common objective, i.e., to shift the zoning classification from industrial to commercial
(Ordinance No. 8027) or mixed residential commercial (Ordinance No. 8119)
xxxx
Ordinance No. 8027 is a special law since it deals specifically with a certain area described
therein (the Pandacan oil depot area) whereas Ordinance No. 8119 can be considered a
general law as it covers the entire city of Manila.
xxxx
Josef Elvin Campos
x x x The repealing clause of Ordinance No. 8119 cannot be taken to indicate the legislative
intent to repeal all prior inconsistent laws on the subject matter, including Ordinance No.
8027, a special enactment, since the aforequoted minutes (an official record of the
discussions in the Sanggunian) actually indicated the clear intent to preserve the provisions
of Ordinance No. 8027.38
Filing of a draft Resolution amending Ordinance No. 8027 effectively allowing the oil depots
to stay in the Pandacan area; Manifestation and Motion to forestall the passing of the new
Ordinance filed in G.R. No. 156052
On 5 March 2009, respondent then Councilor Arlene W. Koa, filed with the Sangguniang
Panlungsod a draft resolution entitled "An Ordinance Amending Ordinance No. 8119
Otherwise Known as ‘The Manila Comprehensive Land Use Plan and Zoning Ordinance of
2006’ by Creating a Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) and
Providing for its Enforcement."39 Initially numbered as Draft Ordinance No. 7177, this was
later renumbered as Ordinance No. 8187, the assailed Ordinance in these instant petitions.
Considering that the provisions thereof run contrary to Ordinance No. 8027, the petitioners
in G.R. No. 156052 filed a "Manifestation and Motion to: a) Stop the City Council of Manila
from further hearing the amending ordinance to Ordinance No. 8027; [and] b) Transfer the
monitoring of the enforcement of the Resolution of the Honorable Court on this case dated
13 February 2008 from Branch 39, Manila Regional Trial Court to the Supreme Court." 40
28 April 2009 Resolution in G.R. No. 156052; Second Motion for Reconsideration denied
with finality; succeeding motions likewise denied or otherwise noted without action
On 28 April 2009, pending the resolution of the Manifestation and Motion, the Court denied
with finalitythe second motion for reconsideration dated 27 February 2008 of the oil
companies.41
It further ruled that no further pleadings shall be entertained in the case. 42
Succeeding motions were thus deniedand/or noted without action. And, after the "Very
Urgent Motion to Stop the Mayor of the City of Manila from Signing Draft Ordinance No.
7177 and to Cite Him for Contempt if He Would Do So" filed on 19 May 2009 was denied on
2 June 2009 for being moot,43 all pleadings pertaining to the earlier motion against the
drafting of an ordinance to amend Ordinance No. 8027 were noted without action. 44
The Enactment of Ordinance No. 8187 allowing the continued stay of the oil depots
On 14 May 2009, during the incumbency of former Mayor Alfredo S. Lim (Mayor Lim), who
succeeded Mayor Atienza, the Sangguniang Panlungsod enacted Ordinance No. 8187. 45
The new Ordinance repealed, amended, rescinded or otherwise modified Ordinance No.
8027, Section 23 of Ordinance No. 8119, and all other Ordinances or provisions
inconsistent therewith46 thereby allowing, once again, the operation of "Pollutive/Non-
Hazardous and Pollutive/Hazardous manufacturing and processing establishments" and
"Highly Pollutive/Non-Hazardous[,] Pollutive/Hazardous[,] Highly Pollutive/Extremely
Hazardous[,] Non-Pollutive/Extremely Hazardous; and Pollutive/Extremely Hazardous; and
Pollutive/Extremely Hazardous manufacturing and processing establishments" within the
newly created Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) in the
Pandacan area.
Thus, where the Industrial Zoneunder Ordinance No. 8119 was limited to Light Industrial
Zone (I-1), Ordinance No. 8187 appended to the list a Medium Industrial Zone (I-2) and a
Heavy Industrial Zone (I-3), where petroleum refineries and oil depots are now among those
expressly allowed.
Hence these petitions.
The Petitions
G.R. No. 187836
To support their petition for prohibition against the enforcement of Ordinance No. 8187, the
petitioner Social Justice Society (SJS) officers allege that:
1. The enactment of the assailed Ordinance is not a valid exercise of police power
because the measures provided therein do not promote the general welfare of the
people within the contemplation of the following provisions of law:
a) Article III, Section 18 (kk)47 of Republic Act No. 409 otherwise known as the
"Revised Charter of the City of Manila," which provides that the Municipal
Board shall have the legislative power to enact all ordinances it may deem
necessary and proper;
b) Section 1648 of Republic Act No. 7160 known as the Local Government
Code, which defines the scope of the general welfare clause;
2. The conditions at the time the Court declared Ordinance No. 8027 constitutional in
G.R. No. 156052 exist to this date;
Josef Elvin Campos
3. Despite the finality of the Decision in G.R. No. 156052, and notwithstanding that
the conditions and circumstances warranting the validity of the Ordinance remain the
same, the Manila City Council passed a contrary Ordinance, thereby refusing to
recognize that "judicial decisions applying or interpreting the laws or the Constitution
form part of the legal system of the Philippines;" 49 and
4. Ordinance No. 8187 is violative of Sections 15 and 16, Article II of the Constitution
of the Philippines on the duty of the State "to protect and promote the right to health
of the people"50 and "protect and advance the right of the people to a balanced and
healthful ecology."51 Petitioners pray that Ordinance No. 8187 of the City of Manila
be declared null and void, and that respondent, and all persons acting under him, be
prohibited from enforcing the same.
G.R. No. 187916
The petition for Prohibition, Mandamus and Certiorari with Prayer for Temporary Restraining
Order and/or Injunction against the enforcement of Ordinance No. 8187 of former Secretary
of Department of Environment and Natural Resources and then Mayor Atienza, together
with other residents and taxpayers of the City of Manila, also alleges violation of the right to
health of the people and the right to a healthful and balanced environment under Sections
15 and 16 of the Constitution.
Petitioners likewise claim that the Ordinance is in violation of the following health and
environment-related municipal laws, and international conventions and treaties to which the
Philippines is a state party:
1. Municipal Laws –
(a) Sections 4,52 12,53 1954 and 3055 of Republic Act No. 8749 otherwise
known as the Philippine Clean Air Act;
(b) Environment Code (Presidential Decree No. 1152);
(c) Toxic and Hazardous Wastes Law (Republic Act No. 6969); and
(d) Civil Code provisions on nuisance and human relations;
2. International Conventions and Treaties to which the Philippines is a state party –
a. Section 1 of the Universal Declaration of Human Rights, which states that
"[e]veryone has the right to life, liberty and security of person;"
b. Articles 6,56 2457 and 2758 of the Convention on the Rights of the Child,
summarized by the petitioners in the following manner:
1. the human right to safe and healthy environment[;]
2. human right to the highest attainable standard of health[;]
3. the human right to ecologically sustainable development[;]
4. the human right to an adequate standard of living, including access to safe food
and water[;]
5. the human right of the child to live in an environment appropriate for physical and
mental development[; and]
6. the human right to full and equal participation for all persons in environmental
decision-making and development planning, and in shaping decisions and policies
affecting one’s community, at the local, national and international levels. 59
Petitioners likewise posit that the title of Ordinance No. 8187 purports to amend or repeal
Ordinance No. 8119 when it actually intends to repeal Ordinance No. 8027. According to
them, Ordinance No. 8027 was never mentioned in the title and the body of the new
ordinance in violation of Section 26, Article VI of the 1987 Constitution, which provides that
every bill passed by Congress shall embrace only one subject which shall be expressed in
the title thereof.
Also pointed out by the petitioners is a specific procedure outlined in Ordinance No. 8119
that should be observed when amending the zoning ordinance. This is provided for under
Section 81 thereof, which reads:
SEC. 81. Amendments to the Zoning Ordinance. The proposed amendments to the Zoning
Ordinance asreviewed and evaluated by the City Planning and Development Office
(CPDO)shall be submitted to the City Council for approval of the majority of the
Sangguniang Panlungsod members. The amendments shall be acceptable and eventually
approved: PROVIDED, That there is sufficient evidence and justification for such proposal;
PROVIDED FURTHER,That such proposal is consistent with the development goals,
planning objectives, and strategies of the Manila Comprehensive Land Use Plan. Said
amendments shall take effect immediately upon approval or after thirty (30) days from
application.
Petitioners thus pray that:
1. upon filing of [the] petition, [the] case be referred to the Court [E]n Banc, and
setting (sic) the case for oral argument;
Josef Elvin Campos
2. upon the filing of [the] petition, a temporary restraining order be issued enjoining
the respondents from publishing and posting Manila City Ordinance No. 8187 and/or
posting of Manila City Ordinance No. 8187; and/or taking any steps to implementing
(sic) and/or enforce the same and after due hearing, the temporary restraining order
be converted to a permanent injunction;
3. x x x Manila City Ordinance 8187 [be declared] as null and void for being
repugnant to the Constitution and existing municipal laws and international
covenants;
4. x x x the respondents [be ordered] to refrain from enforcing and/or implementing
Manila City Ordinance No. 8187;
5. x x x respondent City Mayor Alfredo S. Lim [be enjoined] from issuing any permits
(business or otherwise) to all industries whose allowable uses are anchored under
the provisions of Manila Ordinance No. 8187; and
6. x x x respondent Mayor of Manila Alfredo S. Lim [be ordered] to comply with the
Order of the Honorable Court in G.R. 156052 dated February 13, 2008. 60
The Respondents’ Position on the Consolidated Petitions
Respondent former Mayor Lim
In his Memorandum,61 former Mayor Lim, through the City Legal Officer, attacks the
petitioners’ lack of legal standing to sue. He likewise points out that the petitioners failed to
observe the principle of hierarchy of courts.
Maintaining that Ordinance No. 8187 is valid and constitutional, he expounds on the
following arguments:
On the procedural issues, he contends that: (1) it is the function of the Sangguniang
Panlungsod to enact zoning ordinances, for which reason, it may proceed to amend or
repeal Ordinance No. 8119 without prior referral to the Manila Zoning Board of Adjustment
and Appeals (MZBAA) as prescribed under Section 80 (Procedure for Re-Zoning) and the
City Planning and Development Office (CPDO) pursuant to Section 81 (Amendments to the
Zoning Ordinance) of Ordinance No. 8119, especially when the action actually originated
from the Sangguniang Panlungsod itself; (2) the Sangguniang Panlungsod may, in the later
ordinance, expressly repeal all or part of the zoning ordinance sought to be modified; and
(3) the provision repealing Section 23 of Ordinance No. 8119 is not violative of Section 26,
Article VI of the 1987 Constitution, which requires that every bill must embrace only one
subject and that such shall be expressed in the title.
On the substantive issues, he posits that the petitions are based on unfounded fears; that
the assailed ordinance is a valid exercise of police power; that it is consistent with the
general welfare clause and public policy, and is not unreasonable; that it does not run
contrary to the Constitution, municipal laws, and international conventions; and that the
petitioners failed to overcome the presumption of validity of the assailed ordinance.
Respondents Vice-Mayor Domagoso and the City Councilors who voted in favor of the
assailed ordinance
On 14 September 2012, after the Court gave the respondents several chances to submit
their Memorandum,62 they, through the Secretary of the Sangguniang Panlungsod, prayed
that the Court dispense with the filing thereof.
In their Comment,63 however, respondents offered a position essentially similar to those
proffered by former Mayor Lim.
The Intervenors’ Position on the Consolidated Petitions
On the other hand, the oil companies sought the outright dismissal of the petitions based on
alleged procedural infirmities, among others, incomplete requisites of judicial review,
violation of the principle of hierarchy of courts, improper remedy, submission of a defective
verification and certification against forum shopping, and forum shopping.
As to the substantive issues, they maintain, among others, that the assailed ordinance is
constitutional and valid; that the Sangguniang Panlalawigan is in the best position to
determine the needs of its constituents; that it is a valid exercise of legislative power; that it
does not violate health and environment-related provisions of the Constitution, laws, and
international conventions and treaties to which the Philippines is a party; that the oil depots
are not likely targets of terrorists; that the scaling down of the operations in Pandacan
pursuant to the MOU has been followed; and that the people are safe in view of the safety
measures installed in the Pandacan terminals.
Incidentally, in its Manifestation dated 30 November 2010, 64 Petron informed the Court that
it will "cease [the] operation of its petroleum product storage facilities" 65 in the Pandacan oil
terminal not later than January 2016 on account of the following:
2.01 Environmental issues, many of which are unfounded, continually crop up and tarnish
the Company’s image.
Josef Elvin Campos
2.02. The location of its Pandacanterminal is continually threatened, and made uncertain
preventing long-term planning, by the changing local government composition. Indeed, the
relevant zoning ordinances have been amended three (3) times, and their validity subjected
to litigation.66
Intervening Events
On 28 August 2012, while the Court was awaiting the submission of the Memorandum of
respondents Vice-Mayor Domagoso and the councilors who voted in favor of the assailed
Ordinance, the Sangguniang Panlungsod, which composition had already substantially
changed, enacted Ordinance No. 828367 entitled "AN ORDINANCE AMENDING SECTION
2 OF ORDINANCE NO. 8187 BY RECLASSIFYING THE AREA WHERE PETROLEUM
REFINERIES AND OIL DEPOTS ARE LOCATED FROM HEAVY INDUSTRIAL (1-3) TO
HIGH INTENSITY COMMERCIAL/MIXED USE ZONE (C3/MXD).
The new ordinance essentially amended the assailed ordinance to exclude the area where
petroleum refineries and oil depots are located from the Industrial Zone.
Ordinance No. 8283 thus permits the operation of the industries operating within the
Industrial Zone. However, the oil companies, whose oil depots are located in the High
Intensity Commercial/Mixed Use Zone (C3/MXD), are given until the end of January 2016
within which to relocate their terminals.
Former Mayor Lim, who was then the incumbent mayor, did not support the amendment.
Maintaining that the removal of the oil depots was prejudicial to public welfare, and, on
account of the pending cases in the Supreme Court, he vetoed Ordinance No. 8283 on 11
September 2012.68
On 28 November 2012, former Mayor Lim filed a Manifestation informing this Court that the
Sangguniang Panlungsod voted to override the veto, and that he, in turn, returned it again
with his veto. He likewise directed the Sangguniang Panlungsod to append his written
reasons for his veto of the Ordinance, so that the same will be forwarded to the President
for his consideration in the event that his veto is overridden again. 69
On 11 December 2012, Shell also filed a similar Manifestation. 70
Meanwhile, three days after former Mayor Lim vetoed the new ordinance, Atty. Luch R.
Gempis, Jr. (Atty. Gempis), Secretary of the Sangguniang Panlungsod, writing on behalf of
respondents Vice-Mayor Domagoso and the City Councilors of Manila who voted in favor of
the assailed Ordinance, finally complied with this Court’s Resolution dated 17 July 2012
reiterating its earlier directives71 to submit the said respondents’ Memorandum.
In his Compliance/Explanation with Urgent Manifestation 72 dated 13 September 2012, Atty.
Gempis explained that it was not his intention to show disrespect to this Court or to delay or
prejudice the disposition of the cases.
According to him, he signed the Comment prepared by respondents Vice-Mayor and the
City Councilors only to attest that the pleading was personally signed by the respondents.
He clarified that he was not designated as the legal counsel of the respondents as, in fact,
he was of the impression that, pursuant to Section 481(b)(3) of the Local Government
Code,73 it is the City Legal Officer who isauthorized to represent the local government unit
or any official thereof in a litigation. It was for the same reason that he thought that the filing
of a Memorandum may already be dispensed with when the City Legal Officer filed its own
on 8 February 2010. He further explained that the Ordinance subject of these cases was
passed during the 7th Council (2007-2010); that the composition of the 8th Council (2010-
2013) had already changed after the 2010 elections; and that steps were already taken to
amend the ordinance again. Hence, he was in a dilemma as to the position of the
Sangguniang Panlungsod at the time he received the Court’s Resolution of 31 May 2011.
Atty. Gempis, thus, prayed that the Court dispense with the filing of the required
memorandum in view of the passing of Ordinance No. 8283.
Issue
The petitioners’ arguments are primarily anchored on the ruling of the Court in G. R. No.
156052 declaring Ordinance No. 8027 constitutional and valid after finding that the
presence of the oil terminals in Pandacan is a threat to the life and security of the people of
Manila. From thence, the petitioners enumerated constitutional provisions, municipal laws
and international treaties and conventions on health and environment protection allegedly
violated by the enactment of the assailed Ordinance to support their position.
The resolution of the present controversy is, thus, confined to the determination of whether
or not the enactment of the assailed Ordinance allowing the continued stay of the oil
companies in the depots is, indeed, invalid and unconstitutional.
Our Ruling
We see no reason why Ordinance No. 8187 should not be stricken down insofar as the
presence of the oil depots in Pandacan is concerned.
Josef Elvin Campos
I
We first rule on the procedural issues raised by the respondents and the oil companies.
At the outset, let it be emphasized that the Court, in G.R. No. 156052, has already
pronounced that the matter of whether or not the oil depots should remain in the Pandacan
area is of transcendental importance to the residents of Manila. 74
We may, thus, brush aside procedural infirmities, if any, as we had in the past, and take
cognizance of the cases75 if only to determine if the acts complained of are no longer within
the bounds of the Constitution and the laws in place. 76
Put otherwise, there can be no valid objection to this Court’s discretion to waive one or
some procedural requirements if only to remove any impediment to address and resolve the
serious constitutional question 77 raised in these petitions of transcendental importance, the
same having farreaching implications insofar as the safety and general welfare of the
residents of Manila, and even its neighboring communities, are concerned.
Proper Remedy
Respondents and intervenors argue that the petitions should be outrightly dismissed for
failure on the part of the petitioners to properly apply related provisions of the Constitution,
the Rules of Court, and/or the Rules of Procedure for Environmental Cases relative to the
appropriate remedy available to them.
To begin with, questioned is the applicability of Rule 65 78 of the Rules of Court to assail the
validity and constitutionality of the Ordinance.
… there is no appeal, or any plain,
speedy, and adequate remedy
in the ordinary course of law…
Rule 65 specifically requires that the remedy may be availed of only when "there is no
appeal, or any plain, speedy, and adequate remedy in the ordinary course of law." 79
Shell argues that the petitioners should have sought recourse before the first and second
level courts under the Rules of Procedure for Environmental Cases, 80 which govern "the
enforcement or violations of environmental and other related laws, rules and
regulations."81 Petron additionally submits that the most adequate remedy available to
petitioners is to have the assailed ordinance repealed by the Sangguniang Panlungsod. In
the alternative, a local referendum may be had. And, assuming that there were laws
violated, the petitioners may file an action for each alleged violation of law against the
particular individuals that transgressed the law.
It would appear, however, that the remedies identified by the intervenors prove to be
inadequate toresolve the present controversies in their entirety owing to the intricacies of
the circumstances herein prevailing.
The scope of the Rules of Procedure for Environmental Cases is embodied in Sec. 2, Part I,
Rule I thereof. It states that the Rules shall govern the procedure in civil, criminal and
special civil actions before the Metropolitan Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts and Municipal Circuit Trial Courts, and the Regional Trial Courts
involving enforcement or violations of environmental and other related laws, rules and
regulations such as but not limited to the following:
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
xxxx
(r) R.A. No. 8749, Clean Air Act;
xxxx
(y) Provisions in C.A. No. 141, x x x; and other existing laws that relate to the
conservation, development, preservation, protection and utilization of the
environment and natural resources.82 (Emphasis supplied)
Notably, the aforesaid Rules are limited in scope. While, indeed, there are allegations of
violations of environmental laws in the petitions, these only serve as collateral attacks that
would support the other position of the petitioners – the protection of the rightto life, security
and safety. Moreover, it bears emphasis that the promulgation of the said Rules was
specifically intended to meet the following objectives:
SEC. 3. Objectives.—The objectives of these Rules are:
(a) To protect and advance the constitutional right of the people to a balanced and
healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure for the enforcement
of environmental rights and duties recognized under the Constitution, existing laws,
rules and regulations, and international agreements;
(c) To introduce and adopt innovations and best practices ensuring the effective
enforcement of remedies and redress for violation of environmental laws; and
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(d) To enable the courts to monitor and exact compliance with orders and judgments
in environmental cases.83
Surely, the instant petitions are not within the contemplation of these Rules.
Relative to the position of Petron, it failed to consider that these petitions are already a
sequel to G.R. No. 156052, and that there are some issues herein raised that the remedies
available at the level of the Sangguniang Panlungsod could not address. Neither could the
filing of an individual action for each law violated be harmonized with the essence of a
"plain, speedy, and adequate" remedy.
From another perspective, Shell finds fault with the petitioners’ direct recourse to this Court
when, pursuant to Section 5, Article VIII of the Constitution, the Supreme Court exercises
only appellate jurisdiction over cases involving the constitutionality or validity of an
ordinance.84 Thus:
Section 5.The Supreme Court shall have the following powers:
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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 courtsin:
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. (Emphasis supplied)
To further support its position, it cites the case of Liga ng mga Barangay National v. City
Mayor of Manila,85 where the petitioners sought the nullification of the mayor’s executive
order and the council’s ordinance concerning certain functions of the petitioners that are
vested in them by law. There, the Court held:
Second, although the instant petition is styled as a petition for certiorari, in essence, it seeks
the declaration by this Court of the unconstitutionality or illegality of the questioned
ordinance and executive order. It, thus, partakes of the nature of a petition for declaratory
relief over which this Court has only appellate, not original, jurisdiction. 86 Section 5, Article
VIII of the Constitution provides: x x x
As such, this petition must necessary fail, as this Court does not have original jurisdiction
over a petition for declaratory relief even if only questions of law are involved. 87
Assuming that a petition for declaratory relief is the proper remedy, and that the petitions
should have been filed with the Regional Trial Court, we have, time and again, resolved to
treat such a petition as one for prohibition, provided that the case has far-reaching
implications and transcendental issues that need to be resolved, 88 as in these present
petitions.
On a related issue, we initially found convincing the argument that the petitions should have
been filed with the Regional Trial Court, it having concurrent jurisdiction with this Court over
a special civil action for prohibition, and original jurisdiction over petitions for declaratory
relief. However, as we have repeatedly said, the petitions at bar are of transcendental
importance warranting a relaxation of the doctrine of hierarchy of courts. 89 In the case of
Jaworski v. PAGCOR,90 the Court ratiocinated:
Granting arguendothat the present action cannot be properly treated as a petition for
prohibition, the transcendental importance of the issues involved in this case warrants that
weset aside the technical defects and take primary jurisdiction over the petition at bar. x x x
This is in accordance with the well-entrenched principle that rules of procedure are not
inflexible tools designed to hinder or delay, but to facilitate and promote the administration
of justice.Their strict and rigid application, which would result in technicalities that tend to
frustrate, rather than promote substantial justice, must always be eschewed. (Emphasis
supplied)
…persons aggrieved thereby…
As to who may file a petition for certiorari, prohibition or mandamus, Petron posits that
petitioners are not among the "persons aggrieved" contemplated under Sections 1 to 3 of
Rule 65 of the Rules of Court.
Chevron argues that petitioners, whether as "citizens," taxpayers," or legislators," lack the
legal standing toassail the validity and constitutionality of Ordinance No. 8187. It further
claims that petitioners failed to show that they have suffered any injury and/or threatened
injury as a result of the act complained of. 91
Shell also points out that the petitions cannot be considered taxpayers’ suit, for then, there
should be a claim that public funds were illegally disbursed and that petitioners have
sufficient interest concerning the prevention of illegal expenditure of public money. 92 In G.R.
No. 187916, Shell maintains that the petitioners failed to show their personal interest in the
case and/or to establish that they may represent the general sentiments of the constituents
of the City of Manila so as to be treated as a class suit. Even the minors, it argues, are not
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numerous and representative enough for the petition to be treated as a class suit. Asto the
city councilors who joined the petitioners in assailing the validity of Ordinance No. 8187,
Shell posits that they cannot invoke the ruling in Prof. David v. Pres. Macapagal-
Arroyo,93 where the Court held that legislators may question the constitutionality of a statute,
if and when it infringes upon their prerogatives as legislators, because of the absence of the
allegation that the assailed ordinance indeed infringes upon their prerogatives.
Former Mayor Lim submitted a similar position supported by a number of cases on the
concept of locus standi,94 the direct injury test,95 an outline of the stringent requirements of
legal standing when suing as a citizen, 96 as a taxpayer,97 as a legislator and in cases where
class suits are filed in behalf of all citizens. 98
Their arguments are misplaced.
In G.R. No. 156052, we ruled that the petitioners in that case have a legal right to seek the
enforcement of Ordinance No. 8027 because the subject of the petition concerns a public
right, and they, as residents of Manila, have a direct interest in the implementation of the
ordinances of the city. Thus:
To support the assertion that petitioners have a clear legal right to the enforcement of the
ordinance, petitioner SJS states that it is a political party registered with the Commission on
Elections and has its offices in Manila. It claims to have many members who are residents
of Manila. The other petitioners, Cabigao and Tumbokon, are allegedly residents of Manila.
We need not belabor this point. We have ruled in previous cases that when
a mandamus proceeding concerns a public right and its object is to compel a public duty,
the people who are interested in the execution of the laws are regarded as the real parties
in interest and they need not show any specific interest. Besides, as residents of Manila,
petitioners have a direct interest in the enforcement of the city’s ordinances. 99 x x x
(Citations omitted)
No different are herein petitioners who seek to prohibit the enforcement of the assailed
ordinance, and who deal with the same subject matter that concerns a public right.
Necessarily, the people who are interested in the nullification of such an ordinance are
themselves the real parties in interest, for which reason, they are no longer required to
show any specific interest therein. Moreover, it is worth mentioning that SJS, now
represented by SJS Officer Alcantara, has been recognized by the Court in G.R. No.
156052 to have legal standing to sue in connection with the same subject matter herein
considered. The rest of the petitioners are residents of Manila. Hence, all of them have a
direct interest in the prohibition proceedings against the enforcement of the assailed
ordinance.
In the case of Initiatives for Dialogue and Empowerment through Alternative Legal Services,
Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities Management Corporation
(PSALM),100 involving a petition for certiorari and prohibition to permanently enjoin PSALM
from selling the Angat Hydro-Electric Power Plant (AHEPP) to Korea Water Resources
Corporation (K-Water), the Court ruled:
"Legal standing" or locus standihas been defined as a personal and substantial interest in
the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged, alleging more than a generalized grievance. x x
x This Court, however, has adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft anissue of transcendental significance to the people, as
when the issues raised are of paramount importance to the public. Thus, when the
proceeding involves the assertion of a public right, the mere fact that the petitioner is a
citizen satisfies the requirement of personal interest.
There can be no doubt that the matter of ensuring adequate water supply for domestic use
is one of paramount importance to the public. That the continued availability of potable
water in Metro Manila might be compromised if PSALM proceeds with the privatization of
the hydroelectric power plant in the Angat Dam Complex confers upon petitioners such
personal stake in the resolution of legal issues in a petition to stop its
implementation.101 (Emphasis supplied; citations omitted)
In like manner, the preservation of the life, security and safety of the people is indisputably a
right of utmost importance to the public. Certainly, the petitioners, as residents of Manila,
have the required personal interest to seek relief from this Court to protect such right.
… in excess of its or his jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction…
Petron takes issue with the alleged failure of the petitioners to establish the facts with
certainty that would show that the acts of the respondents fall within the parameters of the
grave abuse of discretion clause settled by jurisprudence, to wit:
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x x x "[G]rave abuse of discretion" means such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as
where the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility and must be so patent and gross asto amount to an evasion of positive
duty or to a virtual refusal to perform the duty enjoined by or to act all in contemplation of
law.102
It is pointless to discuss the matter at length in these instant cases of transcendental
importance in view of the Court’s pronouncement, in Magallona v. Ermita. 103 There it held
that the writs of certiorariand prohibition are proper remedies to test the constitutionality of
statutes, notwithstanding the following defects:
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and prohibition, noting that the writs
cannot issue absent any showing of grave abuse of discretion in the exercise of
judicial, quasi-judicial or ministerial powers on the part of respondents and resulting
prejudice on the part of petitioners.
Respondents’ submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition, viewed
the writs of certiorariand prohibition as proper remedial vehicles to test the
constitutionality of statutes, and indeed, of acts of other branches of government.
Issues of constitutional importx x x carry such relevance in the life of this nation that
the Court inevitably finds itself constrained to take cognizance of the case and pass
upon the issues raised, noncompliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law. 104 (Emphasis
supplied; citations omitted)
Requisites of judicial review
For a valid exercise of the power of judicial review, the following requisites shall concur: (1)
the existence of a legal controversy; (2) legal standing to sue of the party raising the
constitutional question; (3) a plea that judicial review be exercised at the earliest
opportunity; and (4) the constitutional question is the lis mota of the case. 105
Only the first two requisites are put in issue in these cases.
On the matter of the existence of a legal controversy, we reject the contention that the
petitions consist of bare allegations based on speculations, surmises, conjectures and
hypothetical grounds.
The Court declared Ordinance No. 8027 valid and constitutional and ordered its
implementation. Withthe passing of the new ordinance containing the contrary provisions, it
cannot be any clearer that here lies an actual case or controversy for judicial review. The
allegation on this, alone, is sufficient for the purpose.
The second requisite has already been exhaustively discussed.
Proof of identification required in the notarization of the verification and certification against
forum shopping in G.R. No. 187916
At the bottom of the Verification and Certification against Forum Shopping of the petition in
G.R. No. 187916 is the statement of the notary public to the effect that the affiant, in his
presence and after presenting "an integrally competent proof of identification with signature
and photograph,"106 signed the document under oath.
Citing Sec. 163 of the Local Government Code,107 which provides that an individual
acknowledging any document before a notary public shall present his Community Tax
Certificate (CTC), Chevron posits that the petitioner’s failure to present his CTC rendered
the petition fatally defective warranting the outright dismissal of the petition.
We disagree.
The verification and certification against forum shopping are governed specifically by
Sections 4 and 5,Rule 7 of the Rules of Court.
Section 4 provides that a pleading, when required to be verified, shall be treated as an
unsigned pleading if it lacks a proper verification while Section 5 requires that the
certification to be executed by the plaintiff or principal party be under oath.
These sections, in turn, should be read together with Sections 6 and 12, Rule 2 of the 2004
Rules on Notarial Practice.
Section 6108 of the latter Rules, specifically, likewise provides that any competent evidence
of identity specified under Section 12 thereof may now be presented before the notary
public, to wit:
SEC. 12. Competent Evidence of Identity. - The phrase "competent evidence of identity"
refers to the identification of an individual based on:
(a) at least one current identification document issued by an official agency
bearing the photograph and signature of the individual, such as but not limited
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to passport, driver’s license, Professional Regulations Commission ID,
National Bureau of Investigation clearance, police clearance, postal ID,
voter’s ID, Barangay certification, Government Service and Insurance System
(GSIS) e-card, Social Security System (SSS) card, Philhealth card, senior
citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID,
seaman’s book, alien certificate of registration/immigrant certificate of
registration, government office ID, certification from the National Council for
the Welfare of Disable Persons (NCWDP), Department of Social Welfare and
Development (DSWD) certification; or
(b) x x x.109
Forum shopping
Shell contends that the petitioners in G.R. No. 187836 violated the rule against forum
shopping allegedly because all the elements thereof are present in relation to G.R. No.
156052, to wit:
1. "identity of parties, or at least such parties who represent the same interests in
both actions" – According to Shell, the interest of petitioner SJS in G.R. No. 156052
and the officers of SJS in G.R. No. 187836 are clearly the same. Moreover, both
actions implead the incumbent mayor of the City of Manila as respondent. Both then
respondent Mayor Atienza in G.R. No. 156052 and respondent former Mayor Lim in
G.R. No. 187836 are sued in their capacity as Manila mayor.
2. "identity of rights asserted and relief prayed for, the relief being founded on the
same fact(s)" – Shell contends that, in both actions, petitioners assert the same
rights to health and to a balanced and healthful ecology relative to the fate of the
Pandacan terminal, and seek essentially the same reliefs, that is, the removal of the
oil depots from the present site.
3. "the identity of the two preceding particulars is such that any judgment rendered in
the pending case, regardless of which party is successful, would amount to res
judicata in the other" – Relative to the filing of the Manifestation and Motion to: a)
Stop the City Council of Manila from further hearing the amending ordinance to
Ordinance No. 8027 x x x (Manifestation and Motion) and Very Urgent Motion to
Stop the Mayor of the City of Manila from Signing Draft Ordinance No. 7177 [now
Ordinance No. 8187] and to Cite Him for Contempt if He Would Do So (Urgent
Motion) both in G.R. No. 156052, Shell points out the possibility that the Court would
have rendered conflicting rulings "on cases involving the same facts, parties, issues
and reliefs prayed for."110
We are not persuaded.
In Spouses Cruz v. Spouses Caraos,111 the Court expounded on the nature of forum
shopping. Thus:
Forum shopping is an act of a party, against whom an adverse judgment or order has been
rendered in one forum, of seeking and possibly getting a favorable opinion in another forum,
other than by appeal or special civil action for certiorari. It may also be the institution of two
or more actions or proceedings grounded on the same cause on the supposition that one or
the other court would make a favorable disposition. The established rule is that for forum
shopping to exist, both actions must involve the same transactions, same essential facts
and circumstances and must raise identical causes of actions, subject matter, and issues. x
x x112 (Citations omitted) It bears to stress that the present petitions were initially filed, not to
secure a judgment adverse to the first decision, but, precisely, to enforce the earlier ruling to
relocate the oil depots from the Pandacan area.
As to the matter of the denial of the petitioners’ Manifestation and Urgent Motion in G.R. No.
156052, which wereboth incidental to the enforcement of the decision favorable to them
brought about by the intervening events after the judgment had become final and executory,
and which involve the same Ordinance assailed in these petitions, we so hold that the filing
of the instant petitions is not barred by res judicata.
In the same case of Spouses Cruz v. Spouses Caraos involving the refiling of a complaint,
which had been earlier dismissed without qualification that the dismissal was with prejudice,
and which had not been decided on the merits, the Court declared that such re-filing did not
amount to forum shopping. It ratiocinated:
It is not controverted that the allegations of the respective complaints in both Civil Case No.
95-1387 and Civil Case No. 96-0225 are similarly worded, and are identical in all relevant
details, including typographical errors, except for the additional allegations in support of
respondents’ prayer for the issuance of preliminary injunction in Civil Case No. 95-1387. It is
similarly not disputed that both actions involve the same transactions; same essential facts
and circumstances; and raise identical causes of actions, subject matter, and issues.
Josef Elvin Campos
xxxx
x x x The dismissal of Civil Case No. 95-1387 was without prejudice. Indeed, the Order
dated 20 November 1995, dismissing Civil Case No. 95-1387 was an unqualified dismissal.
More significantly, its dismissal was not based on grounds under paragraphs (f), (h), and (i)
of Section 1 of Rule 16 of the Rules of Court, which dismissal shall bar the refiling of the
same action or claim as crystallized in Section 5 of Rule 16 thereof, thus:
SEC. 5. Effect of dismissal. – Subject to the right of appeal, an order granting a motion to
dismiss based on paragraphs (f), (h), and (i) of section 1 hereof shall bar the refiling of the
same action or claim.
From the foregoing, it is clear that dismissals under paragraphs (f), (h), and (i) of Section 1
of Rule 16 of the Rules of Court constitute res judicata, to wit:
(f) That the cause of action isbarred by a prior judgment or by the statute of limitations;
xxxx
(h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of
the statute of frauds.
Res judicata or bar by prior judgmentis a doctrine which holds that a matter that has been
adjudicated by a court of competent jurisdiction must be deemed to have been finally and
conclusively settled if it arises in any subsequent litigation between the same parties and for
the same cause. Res judicata exists when the following elements are present: (a) the
former judgment must be final; (b) the court which rendered judgment had jurisdiction over
the parties and the subject matter; (3)it must be a judgment on the merits; and (d) and there
must be, between the first and second actions, identity ofparties, subject matter, and cause
of action.113 (Emphasis supplied; citations omitted)
Here, it should be noted that this Court denied the said Manifestation and Urgent Motion,
and refused to act on the succeeding pleadings, for being moot. 114 Clearly, the merits of the
motion were not considered by the Court. The following disquisition of the Court in Spouses
Cruz v. Spouses Caraosis further enlightening:
The judgment of dismissal in Civil Case No. 95-1387 does not constitute res judicata to
sufficiently bar the refiling thereof in Civil Case No. 96-0225. As earlier underscored, the
dismissal was one without prejudice. Verily, it was not a judgment on the merits. It bears
reiterating that a judgment on the merits is one rendered after a determination of which
party is right, as distinguished from a judgment rendered upon some preliminary or formal
or merely technical point. The dismissal of the case without prejudice indicates the absence
of a decision on the merits and leaves the parties free to litigate the matter in a subsequent
action asthough the dismissed action had not been commenced. 115 (Emphasis supplied;
citations omitted)
Considering that there is definitely no forum shopping in the instant cases, we need not
discuss in detail the elements of forum shopping.
II
The Local Government Code of 1991 expressly provides that the Sangguniang Panlungsod
is vested with the power to "reclassify land within the jurisdiction of the city" 116 subject to the
pertinent provisions of the Code. It is also settled that an ordinance may be modified or
repealed by another ordinance.117 These have been properly applied in G.R. No. 156052,
where the Court upheld the position of the Sangguniang Panlungsod to reclassify the land
subject of the Ordinance,118 and declared that the mayor has the duty to enforce Ordinance
No. 8027, provided that it has not been repealed by the Sangguniang Panlungsod or
otherwise annulled by the courts. 119 In the same case, the Court also used the principle that
the Sanguniang Panlungsod is in the best position to determine the needs of its
Constituents120 – that the removal of the oil depots from the Pandacan area is necessary "to
protect the residents of Manila from catastrophic devastation in case of a terrorist attack on
the Pandacan Terminals."121
Do all these principles equally apply to the cases at bar involving the same subject matter to
justify the contrary provisions of the assailed Ordinance?
We answer in the negative.
We summarize the position of the Sangguniang Panlungsodon the matter subject of these
petitions. In 2001, the Sanggunian found the relocation of the Pandacan oil depots
necessary. Hence, the enactment of Ordinance No. 8027.
In 2009, when the composition of the Sanggunian had already changed, Ordinance No.
8187 was passed in favor of the retention of the oil depots. In 2012, again when some of the
previous members were no longer re-elected, but with the Vice-Mayor still holding the same
seat, and pending the resolution of these petitions, Ordinance No. 8283 was enacted to give
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the oil depots until the end of January 2016 within which to transfer to another site. Former
Mayor Lim stood his groundand vetoed the last ordinance.
In its Comment, the 7th Council (2007-2010) alleged that the assailed Ordinance was
enacted to alleviate the economic condition of its constituents. 122
Expressing the same position, former Mayor Lim even went to the extent of detailing the
steps123 he took prior to the signing of the Ordinance, if only to show his honest intention to
make the right decision.
The fact remains, however, that notwithstanding that the conditions with respect to the
operations of the oil depots existing prior to the enactment of Ordinance No. 8027 do not
substantially differ to this day, as would later be discussed, the position of the Sangguniang
Panlungsod on the matter has thrice changed, largely depending on the new composition of
the council and/or political affiliations. The foregoing, thus, shows that its determination of
the "general welfare" of the city does not after all gear towards the protection of the people
in its true sense and meaning, but is, one way or another, dependent on the personal
preference of the members who sit in the council as to which particular sector among its
constituents it wishes to favor.
Now that the City of Manila, through the mayor and the city councilors, has changed its view
on the matter, favoring the city’s economic related benefits, through the continued stay of
the oil terminals, over the protection of the very lives and safety of its constituents, it is
imperative for this Court to make a final determination on the basis of the facts on the table
as to which specific right of the inhabitants of Manila should prevail. For, in this present
controversy, history reveals that there is truly no such thing as "the will of Manila" insofar as
the general welfare of the people is concerned.
If in sacrilege, in free translation of Angara 124 by Justice Laurel, we say when the judiciary
mediates we do notin reality nullify or invalidate an act of the Manila Sangguniang
Panlungsod, but only asserts the solemn and sacred obligation assigned to the Court 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.
III
The measures taken by the intervenors to lend support to their position that Manila is now
safe despite the presence of the oil terminals remain ineffective. These have not completely
removed the threat to the lives of the in habitants of Manila.
In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027 was declared
as a guarantee for the protection of the constitutional right to life of the residents of Manila.
There, the Court said that the enactment of the said ordinance was a valid exercise of
police power with the concurrence of the two requisites: a lawful subject – "to safeguard the
rights to life, security and safety of all the inhabitants of Manila;" 125 and a lawful method –
the enactment of Ordinance No. 8027 reclassifying the land use from industrial to
commercial, which effectively ends the continued stay of the oil depots in Pandacan. 126
In the present petitions, the respondents and the oil companies plead that the Pandacan
Terminal has never been one of the targets of terrorist attacks; 127 that the petitions were
based on unfounded fears and mere conjectures; 128 and that the possibility that it would be
picked by the terrorists is nil given the security measures installed thereat. 129
The intervenors went on to identify the measures taken to ensure the safety of the people
even with the presence of the Pandacan Terminals. Thus:
1. Chevron claims that it, together with Shell and Petron, continues to enhance the
safety and security features of the terminals. They likewise adopt fire and product
spill prevention measures in accordance with the local standards set by the Bureau
of Fire Protection, among others, and with the international standards of the
American Petroleum Industry ("API") and the National Fire Prevention and Safety
Association ("NFPSA"); that since 1914, the oil depots had not experienced "any
incident beyond the ordinary risks and expectations" 130 of the residents of Manila;
and that it received a passing grade on the safety measures they installed in the
facilities from the representatives of the City of Manila who conducted an ocular
inspection on 22 May 2009; and
2. Referring to the old MOU entered into between the City of Manila and the DOE, on
the one hand, and the oil companies, on the other, where the parties thereto
conceded and acknowledged that the scale-down option for the Pandacan Terminal
operations is the best alternative to the relocation of the terminals, Shell
enumeratesthe steps taken to scale down its operations.
As to the number of main fuel tanks, the entire Pandacan Terminal has already
decommissioned twenty-eight out of sixty-four tanks. Speaking for Shell alone, its LPG
Josef Elvin Campos
Spheres, which it claims is the only product that may cause explosion, was part of those
decommissioned, thereby allegedly removing the danger of explosion. Safety buffer zones
and linear/green parks were likewise created to separate the terminal from the nearest
residential area. Shell’s portion of the oil depot is likewise allegedly equipped with the latest
technology to ensure air-quality control and waterquality control, and to prevent and cope
with possible oil spills with a crisis management plan in place in the event that an oil spill
occurs. Finally, Shell claims that the recommendations of EQE International in its
Quantitative Risk Assessment (QRA) study, which it says is one of the leading independent
risk assessment providers in the world and largest risk management consultancy, were
sufficiently complied with; and that, on its own initiative, it adopted additional measures for
the purpose, for which reason, "the individual risk level resulting from any incident occurring
from the Pandacan Terminal, per the QRA study, is twenty (20) times lower compared to
the individual risk level of an average working or domestic environment." 131
We are not persuaded.
The issue of whether or not the Pandacan Terminal is not a likely target of terrorist attacks
has already been passed upon in G. R. No. 156052. Based on the assessment of the
Committee on Housing, Resettlement and Urban Development of the City of Manila and the
then position of the Sangguniang Panlungsod, 132 the Court was convinced that the threat of
terrorism is imminent. It remains so convinced.
Even assuming that the respondents and intervenors were correct, the very nature of the
depots where millions of liters of highly flammable and highly volatile products, regardless of
whether ornot the composition may cause explosions, has no place in a densely populated
area. Surely, any untoward incident in the oil depots, beit related to terrorism of whatever
origin or otherwise, would definitely cause not only destruction to properties within and
among the neighboring communities but certainly mass deaths and injuries.
With regard to the scaling down of the operations in the Pandacan Terminals, which the oil
companies continue to insist to have been validated and recognized by the MOU, the
Court,in G.R. No. 156052, has already put this issue to rest. It specifically declared that
even assuming that the terms of the MOU and Ordinance No. 8027 were inconsistent, the
resolutions ratifying the MOU gave it full force and effect only until 30 April 2003. 133
The steps taken by the oil companies, therefore, remain insufficient to convince the Court
that the dangers posed by the presence of the terminals in a thickly populated area have
already been completely removed.
For, given that the threat sought to be prevented may strike at one point or another, no
matter how remote it is as perceived by one or some, we cannot allow the right to life to
bedependent on the unlikelihood of an event. Statistics and theories of probability have no
place in situations where the very life of not just an individual but of residents of big
neighborhoods is at stake.
IV
It is the removal of the danger to life not the mere subdual of risk of catastrophe, that we
saw in and made us favor Ordinance No. 8027. That reason, unaffected by Ordinance No.
8187, compels the affirmance of our Decision in G.R. No. 156052.
In striking down the contrary provisions of the assailed Ordinance relative to the continued
stay of the oil depots, we follow the same line of reasoning used in G.R. No. 156052, to wit:
Ordinance No. 8027 was enacted "for the purpose of promoting sound urban planning,
ensuring health, public safety and general welfare" of the residents of Manila. The
Sanggunian was impelled to take measures to protect the residents of Manila from
catastrophic devastation in case of a terrorist attack on the Pandacan Terminals. Towards
this objective, the Sanggunian reclassified the area defined in the ordinance from industrial
to commercial.
The following facts were found by the Committee on Housing, Resettlement and Urban
Development of the City of Manila which recommended the approval of the ordinance:
(1) the depot facilities contained 313.5 million liters of highly flammable and highly
volatile products which include petroleum gas, liquefied petroleum gas, aviation fuel,
diesel, gasoline, kerosene and fuel oil among others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacañang Palace; and
(4) in case of an explosion or conflagration in the depot, the fire could spread to the
neighboring communities.
The ordinance was intended to safeguard the rights to life, security and safety of all the
inhabitants of Manila and not just of a particular class. The depot is perceived, rightly or
wrongly, as a representation of western interests which means that it is a terrorist target. As
long as it (sic) there is such a target in their midst, the residents of Manila are not safe. It
Josef Elvin Campos
therefore became necessary to remove these terminals to dissipate the threat. According to
respondent:
Such a public need became apparent after the 9/11 incident which showed that what was
perceived to be impossible to happen, to the most powerful country in the world at that, is
actually possible. The destruction of property and the loss of thousands of lives on that
fateful day became the impetus for a public need. Inthe aftermath of the 9/11 tragedy, the
threats of terrorism continued [such] that it became imperative for governments to take
measures to combat their effects.
xxxx
Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027.
Without a doubt, there are no impediments to its enforcement and implementation. Any
delay is unfair to the inhabitants of the City of Manila and its leaders who have categorically
expressed their desire for the relocation of the terminals. Their power to chart and control
their own destiny and preserve their lives and safety should not be curtailed by the
intervenors’ warnings of doomsday scenarios and threats of economic disorder if the
ordinance is enforced.134
The same best interest of the public guides the present decision. The Pandacan oil depot
remains a terrorist target even if the contents have been lessened. In the absence of any
convincing reason to persuade this Court that the life, security and safety of the inhabitants
of Manila are no longer put at risk by the presence of the oil depots, we hold that Ordinance
No. 8187 in relation to the Pandacan Terminals is invalid and unconstitutional.
There is, therefore, no need to resolve the rest of the issues.
Neither is it necessary to discuss at length the test of police power against the assailed
ordinance. Suffice it to state that the objective adopted by the Sangguniang Panlungsod to
promote the constituents’ general welfare in terms of economic benefits cannot override the
very basic rights to life, security and safety of the people.
In. G.R. No. 156052, the Court explained:
Essentially, the oil companies are fighting for their right to property. They allege that they
stand tolose billions of pesos if forced to relocate. However, based on the hierarchy of
constitutionally protected rights, the right to life enjoys precedence over the right to property.
The reason is obvious: life is irreplaceable, property is not. When the state or LGU’s
exercise of police power clashes with a few individuals’ right to property, the former should
prevail.135
We thus conclude with the very final words in G.R. No. 156052:
On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of gasoline and
14,000 liters of diesel exploded in the middle of the street a short distance from the exit gate
of the Pandacan Terminals, causing death, extensive damage and a frightening
conflagration in the vicinity of the incident. Need we say anthing about what will happen if it
is the estimated 162 to 211 million liters [or whatever is left of the 26 tanks] of petroleum
products in the terminal complex will blow up? 136
V
As in the prequel case, we note that as early as October 2001, the oil companies signed a
MOA with the DOE obliging themselves to:
... undertake a comprehensive and comparative study ... [which] shall include the
preparation ofa Master Plan, whose aim is to determine the scope and timing of the feasible
location of the Pandacan oil terminals and all associated facilities and infrastructure
including government support essential for the relocation such as the necessary
transportation infrastructure, land and right of way acquisition, resettlement of displaced
residents and environmental and social acceptability which shall be based on mutual benefit
of the Parties and the public.
such that:
Now that they are being compelled to discontinue their operations in the Pandacan
Terminals, they cannot feign unreadiness considering that they had years to prepare for this
eventuality.137
On the matter of the details of the relocation, the Court gave the oil companies the following
time frames for compliance:
To ensure the orderly transfer, movement and relocation of assets and personnel, the
intervenors Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum
Corporation shall, within a nonextendible period of ninety (90) days, submit to the Regional
Trial Court of Manila, Branch 39, the comprehensive plan and relocation schedule which
have allegedly been prepared. The presiding judge of Manila RTC, Branch 39 will monitor
the strict enforcement of this resolution. 138
Josef Elvin Campos
The periods were given in the Decision in G.R. No. 156052 which became final on 23 April
2009. Five years have passed, since then. The years of non-compliance may be excused
by the swing of local legislative leads. We now stay the sway and begin a final count.
A comprehensive and well-coordinated plan within a specific timeframe shall, therefore, be
observed in the relocation of the Pandacan Terminals. The oil companies shall begiven a
fresh non-extendible period of forty-five (45) days from notice within which to submit to the
Regional Trial Court, Branch 39, Manila an updated comprehensive plan and relocation
schedule. The relocation, inturn, shall be completed not later than six months from the date
of their submission. Finally, let it be underscored that after the last Manifestation filed by
Shell informing this Court that respondent former Mayor Lim vetoed Ordinance No. 8283 for
the second time, and was anticipating its referral to the President for the latter’s
consideration, nothing was heard from any of the parties until the present petitions as to the
status of the approval or disapproval of the said ordinance. As it is, the fate of the Pandacan
Terminals remains dependent on this final disposition of these cases.
VI
On the matter of the failure of Atty. Gempis to immediately comply with the directives of this
Court to file the Memorandum for the Vice-Mayor and the city councilors who voted in favor
of the assailed Ordinance, the records do not bear proof that he received a copy of any of
the resolutions pertaining to the filing of the Memorandum.
A narration of the events from his end would show, however, that he was aware of the
directive issued in 2009 when he stated that "when the City Legal Officer filed its
Memorandum dated 8 February 2010, [he] thought the filing of a Memorandum for the other
respondent city officials could be dispensed with." 139 There was also a categorical
admission that he received the later Resolution of 31 May 2011 but that he could not
prepare a Memorandum defending the position of respondents vice-mayor and the city
councilors who voted in favor of Ordinance No. 8187 in view of the ongoing drafting of
Ordinance No. 8283, which would change the position of the Sanggunian, if subsequently
approved.
The reasons he submitted are notimpressed with merit.
That he was not officially designated as the counsel for the vicemayor and the city
councilors is beside the point. As an officer of the court, he cannot feign ignorance of the
fact that"a resolution of this Court is not a mere request but an order which should be
complied with promptly and completely." 140 As early as 2009, he should have immediately
responded and filed a Manifestation and therein set forth his reasons why he cannot
represent the vice-mayor and the city councilors. And, even assuming that the 31 May 2011
Resolution was the first directive he personally received, he had no valid excuse for
disregarding the same. Worse, the Court had to issue a show cause order before he finally
heeded.
Atty. Gempis should "strive harderto live up to his duties of observing and maintaining the
respect dueto the courts, respect for law and for legal processes and of upholding the
integrity and dignity of the legal profession in order to perform his responsibilities asa lawyer
effectively."141
In Sibulo v. Ilagan,142 which involves a lawyer’s repeated failure to comply with the directives
of the Court, the penalty recommended by the Integrated Bar of the Philippines was
reduced from suspension to reprimand and a warning. The Court ratiocinated:
Considering, however, that respondent was absolved of the administrative charge against
him and is being taken to task for his intransigence and lack of respect, the Court finds that
the penalty of suspension would not be warranted under the circumstances.
xxxx
To the Court’s mind, a reprimand and a warning are sufficient sanctions for respondent’s
disrespectful actuations directed against the Court and the IBP. The imposition of these
sanctions in the present case would be more consistent with the avowed purpose of
disciplinary case, which is "not so much to punish the individual attorney as to protect the
dispensation of justice by sheltering the judiciary and the public from the misconduct or
inefficiency of officers of the court."143
We consider the participation of Atty. Gempis in this case and opt to be lenient even as we
reiterate the objective of protecting the dispensation of justice. We deem it sufficient to
remind Atty. Gempis to be more mindful of his duty as a lawyer towards the Court.
WHEREFORE, in light of all the foregoing, Ordinance No. 8187 is hereby declared
UNCONSTITUTIONAL and INVALID with respect to the continued stay of the Pandacan Oil
Terminals.
The incumbent mayor of the City of Manila is hereby ordered to CEASE and DESIST from
enforcing Ordinance No. 8187.1âwphi1 In coordination with the appropriate government
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agencies and the parties herein involved, he is further ordered to oversee the relocation and
transfer of the oil terminals out of the Pandacan area.
As likewise required in G.R. No. 156052, the intervenors Chevron Philippines, Inc., Pilipinas
Shell Petroleum Corporation, and Petron Corporation shall, within a non-extendible period
of forty-five (45) days, submit to the Regional Trial Court, Branch 39, Manila an updated
comprehensive plan and relocation schedule, which relocation shall be completed not later
than six (6) months from the date the required documents are submitted. The presiding
judge of Branch 39 shall monitor the strict enforcement of this Decision.
For failure to observe the respect due to the Court, Atty. Luch R. Gempis, Jr., Secretary of
the Sangguniang Panlungsod, is REMINDED of his duties towards the Court and WARNED
that a repetition of an act similar to that here committed shall be dealt with more severely.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
2. Taxing Power (cf., Local Taxation: Sec. 5-7, Art. X, Constitution; Secs.
128-196, LGC)
Section 5. Each local government unit shall have the power to create its
own sources of revenues and to levy taxes, fees and charges subject to
such guidelines and limitations as the Congress may provide, consistent
with the basic policy of local autonomy. Such taxes, fees, and charges
shall accrue exclusively to the local governments.
Section 6. Local government units shall have a just share, as determined
by law, in the national taxes which shall be automatically released to
them.
Section 7. Local governments shall be entitled to an equitable share in the
proceeds of the utilization and development of the national wealth within
their respective areas, in the manner provided by law, including sharing
the same with the inhabitants by way of direct benefits.
Cases:
Manila International Airport Authority v. Court of Appeals (G.R. No.
155650, 20 July 2006)
G.R. No. 155650 July 20, 2006
MANILA INTERNATIONAL AIRPORT AUTHORITY, petitioner,
vs.
COURT OF APPEALS, CITY OF PARAÑAQUE, CITY MAYOR OF PARAÑAQUE,
SANGGUNIANG PANGLUNGSOD NG PARAÑAQUE, CITY ASSESSOR OF
PARAÑAQUE, and CITY TREASURER OF PARAÑAQUE, respondents.
DECISION
CARPIO, J.:
The Antecedents
Petitioner Manila International Airport Authority (MIAA) operates the Ninoy Aquino
International Airport (NAIA) Complex in Parañaque City under Executive Order No. 903,
otherwise known as the Revised Charter of the Manila International Airport Authority ("MIAA
Charter"). Executive Order No. 903 was issued on 21 July 1983 by then President
Ferdinand E. Marcos. Subsequently, Executive Order Nos. 909 1 and 2982 amended the
MIAA Charter.
As operator of the international airport, MIAA administers the land, improvements and
equipment within the NAIA Complex. The MIAA Charter transferred to MIAA approximately
600 hectares of land,3 including the runways and buildings ("Airport Lands and Buildings")
then under the Bureau of Air Transportation.4 The MIAA Charter further provides that no
portion of the land transferred to MIAA shall be disposed of through sale or any other mode
unless specifically approved by the President of the Philippines. 5
On 21 March 1997, the Office of the Government Corporate Counsel (OGCC) issued
Opinion No. 061. The OGCC opined that the Local Government Code of 1991 withdrew the
exemption from real estate tax granted to MIAA under Section 21 of the MIAA Charter.
Thus, MIAA negotiated with respondent City of Parañaque to pay the real estate tax
imposed by the City. MIAA then paid some of the real estate tax already due.
Josef Elvin Campos
On 28 June 2001, MIAA received Final Notices of Real Estate Tax Delinquency from the
City of Parañaque for the taxable years 1992 to 2001. MIAA's real estate tax delinquency is
broken down as follows:
TAX TAXABLE
TAX DUE PENALTY TOTAL
DECLARATION YEAR
E-016-01370 1992-2001 19,558,160.00 11,201,083.20 30,789,243.20
E-016-01374 1992-2001 111,689,424.90 68,149,479.59 179,838,904.49
E-016-01375 1992-2001 20,276,058.00 12,371,832.00 32,647,890.00
E-016-01376 1992-2001 58,144,028.00 35,477,712.00 93,621,740.00
E-016-01377 1992-2001 18,134,614.65 11,065,188.59 29,199,803.24
E-016-01378 1992-2001 111,107,950.40 67,794,681.59 178,902,631.99
E-016-01379 1992-2001 4,322,340.00 2,637,360.00 6,959,700.00
E-016-01380 1992-2001 7,776,436.00 4,744,944.00 12,521,380.00
*E-016-013-85 1998-2001 6,444,810.00 2,900,164.50 9,344,974.50
*E-016-01387 1998-2001 34,876,800.00 5,694,560.00 50,571,360.00
*E-016-01396 1998-2001 75,240.00 33,858.00 109,098.00
GRAND TOTAL P392,435,861.95 P232,070,863.47 P 624,506,725.42
1992-1997 RPT was paid on Dec. 24, 1997 as per O.R.#9476102 for P4,207,028.75
#9476101 for P28,676,480.00
#9476103 for P49,115.006
On 17 July 2001, the City of Parañaque, through its City Treasurer, issued notices of levy
and warrants of levy on the Airport Lands and Buildings. The Mayor of the City of
Parañaque threatened to sell at public auction the Airport Lands and Buildings should MIAA
fail to pay the real estate tax delinquency. MIAA thus sought a clarification of OGCC
Opinion No. 061.
On 9 August 2001, the OGCC issued Opinion No. 147 clarifying OGCC Opinion No. 061.
The OGCC pointed out that Section 206 of the Local Government Code requires persons
exempt from real estate tax to show proof of exemption. The OGCC opined that Section 21
of the MIAA Charter is the proof that MIAA is exempt from real estate tax.
On 1 October 2001, MIAA filed with the Court of Appeals an original petition for prohibition
and injunction, with prayer for preliminary injunction or temporary restraining order. The
petition sought to restrain the City of Parañaque from imposing real estate tax on, levying
against, and auctioning for public sale the Airport Lands and Buildings. The petition was
docketed as CA-G.R. SP No. 66878.
On 5 October 2001, the Court of Appeals dismissed the petition because MIAA filed it
beyond the 60-day reglementary period. The Court of Appeals also denied on 27
September 2002 MIAA's motion for reconsideration and supplemental motion for
reconsideration. Hence, MIAA filed on 5 December 2002 the present petition for review. 7
Meanwhile, in January 2003, the City of Parañaque posted notices of auction sale at the
Barangay Halls of Barangays Vitalez, Sto. Niño, and Tambo, Parañaque City; in the public
market of Barangay La Huerta; and in the main lobby of the Parañaque City Hall. The City
of Parañaque published the notices in the 3 and 10 January 2003 issues of the Philippine
Daily Inquirer, a newspaper of general circulation in the Philippines. The notices announced
the public auction sale of the Airport Lands and Buildings to the highest bidder on 7
February 2003, 10:00 a.m., at the Legislative Session Hall Building of Parañaque City.
A day before the public auction, or on 6 February 2003, at 5:10 p.m., MIAA filed before this
Court an Urgent Ex-Parte and Reiteratory Motion for the Issuance of a Temporary
Restraining Order. The motion sought to restrain respondents — the City of Parañaque,
City Mayor of Parañaque, Sangguniang Panglungsod ng Parañaque, City Treasurer of
Parañaque, and the City Assessor of Parañaque ("respondents") — from auctioning the
Airport Lands and Buildings.
On 7 February 2003, this Court issued a temporary restraining order (TRO) effective
immediately. The Court ordered respondents to cease and desist from selling at public
auction the Airport Lands and Buildings. Respondents received the TRO on the same day
that the Court issued it. However, respondents received the TRO only at 1:25 p.m. or three
hours after the conclusion of the public auction.
On 10 February 2003, this Court issued a Resolution confirming nunc pro tunc the TRO.
On 29 March 2005, the Court heard the parties in oral arguments. In compliance with the
directive issued during the hearing, MIAA, respondent City of Parañaque, and the Solicitor
General subsequently submitted their respective Memoranda.
Josef Elvin Campos
MIAA admits that the MIAA Charter has placed the title to the Airport Lands and Buildings in
the name of MIAA. However, MIAA points out that it cannot claim ownership over these
properties since the real owner of the Airport Lands and Buildings is the Republic of the
Philippines. The MIAA Charter mandates MIAA to devote the Airport Lands and Buildings
for the benefit of the general public. Since the Airport Lands and Buildings are devoted to
public use and public service, the ownership of these properties remains with the State. The
Airport Lands and Buildings are thus inalienable and are not subject to real estate tax by
local governments.
MIAA also points out that Section 21 of the MIAA Charter specifically exempts MIAA from
the payment of real estate tax. MIAA insists that it is also exempt from real estate tax under
Section 234 of the Local Government Code because the Airport Lands and Buildings are
owned by the Republic. To justify the exemption, MIAA invokes the principle that the
government cannot tax itself. MIAA points out that the reason for tax exemption of public
property is that its taxation would not inure to any public advantage, since in such a case
the tax debtor is also the tax creditor.
Respondents invoke Section 193 of the Local Government Code, which expressly
withdrew the tax exemption privileges of "government-owned and-controlled
corporations" upon the effectivity of the Local Government Code. Respondents also argue
that a basic rule of statutory construction is that the express mention of one person, thing,
or act excludes all others. An international airport is not among the exceptions mentioned in
Section 193 of the Local Government Code. Thus, respondents assert that MIAA cannot
claim that the Airport Lands and Buildings are exempt from real estate tax.
Respondents also cite the ruling of this Court in Mactan International Airport v.
Marcos8 where we held that the Local Government Code has withdrawn the exemption
from real estate tax granted to international airports. Respondents further argue that since
MIAA has already paid some of the real estate tax assessments, it is now estopped from
claiming that the Airport Lands and Buildings are exempt from real estate tax.
The Issue
This petition raises the threshold issue of whether the Airport Lands and Buildings of MIAA
are exempt from real estate tax under existing laws. If so exempt, then the real estate tax
assessments issued by the City of Parañaque, and all proceedings taken pursuant to such
assessments, are void. In such event, the other issues raised in this petition become moot.
The Court's Ruling
We rule that MIAA's Airport Lands and Buildings are exempt from real estate tax imposed
by local governments.
First, MIAA is not a government-owned or controlled corporation but an instrumentality of
the National Government and thus exempt from local taxation. Second, the real properties
of MIAA are owned by the Republic of the Philippines and thus exempt from real estate
tax.
1. MIAA is Not a Government-Owned or Controlled Corporation
Respondents argue that MIAA, being a government-owned or controlled corporation, is not
exempt from real estate tax. Respondents claim that the deletion of the phrase "any
government-owned or controlled so exempt by its charter" in Section 234(e) of the Local
Government Code withdrew the real estate tax exemption of government-owned or
controlled corporations. The deleted phrase appeared in Section 40(a) of the 1974 Real
Property Tax Code enumerating the entities exempt from real estate tax.
There is no dispute that a government-owned or controlled corporation is not exempt from
real estate tax. However, MIAA is not a government-owned or controlled corporation.
Section 2(13) of the Introductory Provisions of the Administrative Code of 1987 defines a
government-owned or controlled corporation as follows:
SEC. 2. General Terms Defined. – x x x x
(13) Government-owned or controlled corporation refers to any agency organized
as a stock or non-stock corporation, vested with functions relating to public needs
whether governmental or proprietary in nature, and owned by the Government
directly or through its instrumentalities either wholly, or, where applicable as in the
case of stock corporations, to the extent of at least fifty-one (51) percent of its capital
stock: x x x. (Emphasis supplied)
A government-owned or controlled corporation must be "organized as a stock or non-
stock corporation." MIAA is not organized as a stock or non-stock corporation. MIAA is not
a stock corporation because it has no capital stock divided into shares. MIAA has no
stockholders or voting shares. Section 10 of the MIAA Charter 9 provides:
Josef Elvin Campos
SECTION 10. Capital. — The capital of the Authority to be contributed by the
National Government shall be increased from Two and One-half Billion
(P2,500,000,000.00) Pesos to Ten Billion (P10,000,000,000.00) Pesos to consist of:
(a) The value of fixed assets including airport facilities, runways and equipment and
such other properties, movable and immovable[,] which may be contributed by the
National Government or transferred by it from any of its agencies, the valuation of
which shall be determined jointly with the Department of Budget and Management
and the Commission on Audit on the date of such contribution or transfer after
making due allowances for depreciation and other deductions taking into account the
loans and other liabilities of the Authority at the time of the takeover of the assets
and other properties;
(b) That the amount of P605 million as of December 31, 1986 representing about
seventy percentum (70%) of the unremitted share of the National Government from
1983 to 1986 to be remitted to the National Treasury as provided for in Section 11 of
E. O. No. 903 as amended, shall be converted into the equity of the National
Government in the Authority. Thereafter, the Government contribution to the capital
of the Authority shall be provided in the General Appropriations Act.
Clearly, under its Charter, MIAA does not have capital stock that is divided into shares.
Section 3 of the Corporation Code10 defines a stock corporation as one whose "capital
stock is divided into shares and x x x authorized to distribute to the holders of such
shares dividends x x x." MIAA has capital but it is not divided into shares of stock. MIAA
has no stockholders or voting shares. Hence, MIAA is not a stock corporation.
MIAA is also not a non-stock corporation because it has no members. Section 87 of the
Corporation Code defines a non-stock corporation as "one where no part of its income is
distributable as dividends to its members, trustees or officers." A non-stock corporation
must have members. Even if we assume that the Government is considered as the sole
member of MIAA, this will not make MIAA a non-stock corporation. Non-stock corporations
cannot distribute any part of their income to their members. Section 11 of the MIAA Charter
mandates MIAA to remit 20% of its annual gross operating income to the National
Treasury.11 This prevents MIAA from qualifying as a non-stock corporation.
Section 88 of the Corporation Code provides that non-stock corporations are "organized for
charitable, religious, educational, professional, cultural, recreational, fraternal, literary,
scientific, social, civil service, or similar purposes, like trade, industry, agriculture and like
chambers." MIAA is not organized for any of these purposes. MIAA, a public utility, is
organized to operate an international and domestic airport for public use.
Since MIAA is neither a stock nor a non-stock corporation, MIAA does not qualify as a
government-owned or controlled corporation. What then is the legal status of MIAA within
the National Government?
MIAA is a government instrumentality vested with corporate powers to perform efficiently
its governmental functions. MIAA is like any other government instrumentality, the only
difference is that MIAA is vested with corporate powers. Section 2(10) of the Introductory
Provisions of the Administrative Code defines a government "instrumentality" as follows:
SEC. 2. General Terms Defined. –– x x x x
(10) Instrumentality refers to any agency of the National Government, not integrated
within the department framework, vested with special functions or jurisdiction by
law, endowed with some if not all corporate powers, administering special funds,
and enjoying operational autonomy, usually through a charter. x x x (Emphasis
supplied)
When the law vests in a government instrumentality corporate powers, the instrumentality
does not become a corporation. Unless the government instrumentality is organized as a
stock or non-stock corporation, it remains a government instrumentality exercising not only
governmental but also corporate powers. Thus, MIAA exercises the governmental powers
of eminent domain,12 police authority13 and the levying of fees and charges. 14 At the same
time, MIAA exercises "all the powers of a corporation under the Corporation Law, insofar as
these powers are not inconsistent with the provisions of this Executive Order." 15
Likewise, when the law makes a government instrumentality operationally autonomous,
the instrumentality remains part of the National Government machinery although not
integrated with the department framework. The MIAA Charter expressly states that
transforming MIAA into a "separate and autonomous body" 16 will make its operation more
"financially viable."17
Many government instrumentalities are vested with corporate powers but they do not
become stock or non-stock corporations, which is a necessary condition before an agency
or instrumentality is deemed a government-owned or controlled corporation. Examples are
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the Mactan International Airport Authority, the Philippine Ports Authority, the University of
the Philippines and Bangko Sentral ng Pilipinas. All these government instrumentalities
exercise corporate powers but they are not organized as stock or non-stock corporations as
required by Section 2(13) of the Introductory Provisions of the Administrative Code. These
government instrumentalities are sometimes loosely called government corporate entities.
However, they are not government-owned or controlled corporations in the strict sense as
understood under the Administrative Code, which is the governing law defining the legal
relationship and status of government entities.
A government instrumentality like MIAA falls under Section 133(o) of the Local
Government Code, which states:
SEC. 133. Common Limitations on the Taxing Powers of Local Government Units.
– Unless otherwise provided herein, the exercise of the taxing powers of
provinces, cities, municipalities, and barangays shall not extend to the levy of
the following:
xxxx
(o) Taxes, fees or charges of any kind on the National Government, its
agencies and instrumentalities and local government units.(Emphasis and
Section 133(o) recognizes the basic principle that local governments cannot tax the national
government, which historically merely delegated to local governments the power to tax.
While the 1987 Constitution now includes taxation as one of the powers of local
governments, local governments may only exercise such power "subject to such guidelines
and limitations as the Congress may provide." 18
When local governments invoke the power to tax on national government instrumentalities,
such power is construed strictly against local governments. The rule is that a tax is never
presumed and there must be clear language in the law imposing the tax. Any doubt whether
a person, article or activity is taxable is resolved against taxation. This rule applies with
greater force when local governments seek to tax national government instrumentalities.
Another rule is that a tax exemption is strictly construed against the taxpayer claiming the
exemption. However, when Congress grants an exemption to a national government
instrumentality from local taxation, such exemption is construed liberally in favor of the
national government instrumentality. As this Court declared in Maceda v. Macaraig, Jr.:
The reason for the rule does not apply in the case of exemptions running to the
benefit of the government itself or its agencies. In such case the practical effect of an
exemption is merely to reduce the amount of money that has to be handled by
government in the course of its operations. For these reasons, provisions granting
exemptions to government agencies may be construed liberally, in favor of non tax-
liability of such agencies.19
There is, moreover, no point in national and local governments taxing each other, unless a
sound and compelling policy requires such transfer of public funds from one government
pocket to another.
There is also no reason for local governments to tax national government instrumentalities
for rendering essential public services to inhabitants of local governments. The only
exception is when the legislature clearly intended to tax government
instrumentalities for the delivery of essential public services for sound and
compelling policy considerations. There must be express language in the law
empowering local governments to tax national government instrumentalities. Any doubt
whether such power exists is resolved against local governments.
Thus, Section 133 of the Local Government Code states that "unless otherwise provided"
in the Code, local governments cannot tax national government instrumentalities. As this
Court held in Basco v. Philippine Amusements and Gaming Corporation:
The states have no power by taxation or otherwise, to retard, impede, burden
or in any manner control the operation of constitutional laws enacted by
Congress to carry into execution the powers vested in the federal
government. (MC Culloch v. Maryland, 4 Wheat 316, 4 L Ed. 579)
governments.
"Justice Holmes, speaking for the Supreme Court, made reference to the
entire absence of power on the part of the States to touch, in that way
(taxation) at least, the instrumentalities of the United States (Johnson v.
Maryland, 254 US 51) and it can be agreed that no state or political
subdivision can regulate a federal instrumentality in such a way as to prevent
it from consummating its federal responsibilities, or even to seriously burden
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it in the accomplishment of them." (Antieau, Modern Constitutional Law, Vol.
2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru
extermination of what local authorities may perceive to be undesirable activities or
enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US
42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc
Culloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or
creation of the very entity which has the inherent power to wield it. 20
2. Airport Lands and Buildings of MIAA are Owned by the Republic
a. Airport Lands and Buildings are of Public Dominion
The Airport Lands and Buildings of MIAA are property of public dominion and therefore
owned by the State or the Republic of the Philippines. The Civil Code provides:
ARTICLE 419. Property is either of public dominion or of private ownership.
ARTICLE 420. The following things are property of public dominion:
(1) Those 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;
(2) Those 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. (Emphasis
supplied)
ARTICLE 421. All other property of the State, which is not of the character stated in
the preceding article, is patrimonial property.
ARTICLE 422. Property of public dominion, when no longer intended for public use
or for public service, shall form part of the patrimonial property of the State.
No one can dispute that properties of public dominion mentioned in Article 420 of the Civil
Code, like "roads, canals, rivers, torrents, ports and bridges constructed by the State,"
are owned by the State. The term "ports" includes seaports and airports. The MIAA
Airport Lands and Buildings constitute a "port" constructed by the State. Under Article 420
of the Civil Code, the MIAA Airport Lands and Buildings are properties of public dominion
and thus owned by the State or the Republic of the Philippines.
The Airport Lands and Buildings are devoted to public use because they are used by the
public for international and domestic travel and transportation. The fact that the MIAA
collects terminal fees and other charges from the public does not remove the character of
the Airport Lands and Buildings as properties for public use. The operation by the
government of a tollway does not change the character of the road as one for public use.
Someone must pay for the maintenance of the road, either the public indirectly through the
taxes they pay the government, or only those among the public who actually use the road
through the toll fees they pay upon using the road. The tollway system is even a more
efficient and equitable manner of taxing the public for the maintenance of public roads.
The charging of fees to the public does not determine the character of the property whether
it is of public dominion or not. Article 420 of the Civil Code defines property of public
dominion as one "intended for public use." Even if the government collects toll fees, the
road is still "intended for public use" if anyone can use the road under the same terms and
conditions as the rest of the public. The charging of fees, the limitation on the kind of
vehicles that can use the road, the speed restrictions and other conditions for the use of the
road do not affect the public character of the road.
The terminal fees MIAA charges to passengers, as well as the landing fees MIAA charges
to airlines, constitute the bulk of the income that maintains the operations of MIAA. The
collection of such fees does not change the character of MIAA as an airport for public use.
Such fees are often termed user's tax. This means taxing those among the public who
actually use a public facility instead of taxing all the public including those who never use
the particular public facility. A user's tax is more equitable — a principle of taxation
mandated in the 1987 Constitution.21
The Airport Lands and Buildings of MIAA, which its Charter calls the "principal airport of the
Philippines for both international and domestic air traffic," 22 are properties of public dominion
because they are intended for public use. As properties of public dominion, they
indisputably belong to the State or the Republic of the Philippines.
b. Airport Lands and Buildings are Outside the Commerce of Man
The Airport Lands and Buildings of MIAA are devoted to public use and thus are properties
of public dominion. As properties of public dominion, the Airport Lands and Buildings
are outside the commerce of man. The Court has ruled repeatedly that properties of
public dominion are outside the commerce of man. As early as 1915, this Court already
Josef Elvin Campos
ruled in Municipality of Cavite v. Rojas that properties devoted to public use are outside
the commerce of man, thus:
According to article 344 of the Civil Code: "Property for public use in provinces and
in towns comprises the provincial and town roads, the squares, streets, fountains,
and public waters, the promenades, and public works of general service supported
by said towns or provinces."
The said Plaza Soledad being a promenade for public use, the municipal council of
Cavite could not in 1907 withdraw or exclude from public use a portion thereof in
order to lease it for the sole benefit of the defendant Hilaria Rojas. In leasing a
portion of said plaza or public place to the defendant for private use the plaintiff
municipality exceeded its authority in the exercise of its powers by executing a
contract over a thing of which it could not dispose, nor is it empowered so to do.
The Civil Code, article 1271, prescribes that everything which is not outside the
commerce of man may be the object of a contract, and plazas and streets
are outside of this commerce, as was decided by the supreme court of Spain in its
decision of February 12, 1895, which says: "Communal things that cannot be sold
because they are by their very nature outside of commerce are those for public
use, such as the plazas, streets, common lands, rivers, fountains, etc."
(Emphasis supplied) 23
Again in Espiritu v. Municipal Council, the Court declared that properties of public
dominion are outside the commerce of man:
xxx Town plazas are properties of public dominion, to be devoted to public use
and to be made available to the public in general. They are outside the commerce
of man and cannot be disposed of or even leased by the municipality to private
parties. While in case of war or during an emergency, town plazas may be occupied
temporarily by private individuals, as was done and as was tolerated by the
Municipality of Pozorrubio, when the emergency has ceased, said temporary
occupation or use must also cease, and the town officials should see to it that the
town plazas should ever be kept open to the public and free from encumbrances or
illegal private constructions.24 (Emphasis supplied)
The Court has also ruled that property of public dominion, being outside the commerce of
man, cannot be the subject of an auction sale. 25
Properties of public dominion, being for public use, are not subject to levy, encumbrance or
disposition through public or private sale. Any encumbrance, levy on execution or auction
sale of any property of public dominion is void for being contrary to public policy. Essential
public services will stop if properties of public dominion are subject to encumbrances,
foreclosures and auction sale. This will happen if the City of Parañaque can foreclose and
compel the auction sale of the 600-hectare runway of the MIAA for non-payment of real
estate tax.
Before MIAA can encumber26 the Airport Lands and Buildings, the President must
first withdraw from public use the Airport Lands and Buildings. Sections 83 and 88 of the
Public Land Law or Commonwealth Act No. 141, which "remains to this day the existing
general law governing the classification and disposition of lands of the public domain other
than timber and mineral lands,"27 provide:
SECTION 83. Upon the recommendation of the Secretary of Agriculture and Natural
Resources, the President may designate by proclamation any tract or tracts of land
of the public domain as reservations for the use of the Republic of the Philippines or
of any of its branches, or of the inhabitants thereof, in accordance with regulations
prescribed for this purposes, or for quasi-public uses or purposes when the public
interest requires it, including reservations for highways, rights of way for railroads,
hydraulic power sites, irrigation systems, communal pastures or lequas communales,
public parks, public quarries, public fishponds, working men's village and other
improvements for the public benefit.
SECTION 88. The tract or tracts of land reserved under the provisions of
Section eighty-three shall be non-alienable and shall not be subject to
occupation, entry, sale, lease, or other disposition until again declared
alienable under the provisions of this Act or by proclamation of the President.
Thus, unless the President issues a proclamation withdrawing the Airport Lands and
Buildings from public use, these properties remain properties of public dominion and
are inalienable. Since the Airport Lands and Buildings are inalienable in their present
status as properties of public dominion, they are not subject to levy on execution or
Josef Elvin Campos
foreclosure sale. As long as the Airport Lands and Buildings are reserved for public use,
their ownership remains with the State or the Republic of the Philippines.
The authority of the President to reserve lands of the public domain for public use, and to
withdraw such public use, is reiterated in Section 14, Chapter 4, Title I, Book III of the
Administrative Code of 1987, which states:
SEC. 14. Power to Reserve Lands of the Public and Private Domain of the
Government. — (1) The President shall have the power to reserve for settlement
or public use, and for specific public purposes, any of the lands of the public
domain, the use of which is not otherwise directed by law. The reserved land
shall thereafter remain subject to the specific public purpose indicated until
otherwise provided by law or proclamation;
x x x x. (Emphasis supplied)
There is no question, therefore, that unless the Airport Lands and Buildings are withdrawn
by law or presidential proclamation from public use, they are properties of public dominion,
owned by the Republic and outside the commerce of man.
c. MIAA is a Mere Trustee of the Republic
MIAA is merely holding title to the Airport Lands and Buildings in trust for the Republic.
Section 48, Chapter 12, Book I of the Administrative Code allows instrumentalities like
MIAA to hold title to real properties owned by the Republic, thus:
SEC. 48. Official Authorized to Convey Real Property. — Whenever real property of
the Government is authorized by law to be conveyed, the deed of conveyance shall
be executed in behalf of the government by the following:
(1) For property belonging to and titled in the name of the Republic of the
Philippines, by the President, unless the authority therefor is expressly vested by law
in another officer.
(2) For property belonging to the Republic of the Philippines but titled in the
name of any political subdivision or of any corporate agency or
instrumentality, by the executive head of the agency or instrumentality. (Emphasis
supplied)
In MIAA's case, its status as a mere trustee of the Airport Lands and Buildings is clearer
because even its executive head cannot sign the deed of conveyance on behalf of the
Republic. Only the President of the Republic can sign such deed of conveyance. 28
d. Transfer to MIAA was Meant to Implement a Reorganization
The MIAA Charter, which is a law, transferred to MIAA the title to the Airport Lands and
Buildings from the Bureau of Air Transportation of the Department of Transportation and
Communications. The MIAA Charter provides:
SECTION 3. Creation of the Manila International Airport Authority. — x x x x
The land where the Airport is presently located as well as the surrounding land
area of approximately six hundred hectares, are hereby transferred, conveyed
and assigned to the ownership and administration of the Authority, subject to
existing rights, if any. The Bureau of Lands and other appropriate government
agencies shall undertake an actual survey of the area transferred within one year
from the promulgation of this Executive Order and the corresponding title to be
issued in the name of the Authority. Any portion thereof shall not be disposed
through sale or through any other mode unless specifically approved by the
President of the Philippines. (Emphasis supplied)
SECTION 22. Transfer of Existing Facilities and Intangible Assets. — All
existing public airport facilities, runways, lands, buildings and other property,
movable or immovable, belonging to the Airport, and all assets, powers, rights,
interests and privileges belonging to the Bureau of Air Transportation relating to
airport works or air operations, including all equipment which are necessary for the
operation of crash fire and rescue facilities, are hereby transferred to the Authority.
(Emphasis supplied)
SECTION 25. Abolition of the Manila International Airport as a Division in the Bureau
of Air Transportation and Transitory Provisions. — The Manila International Airport
including the Manila Domestic Airport as a division under the Bureau of Air
Transportation is hereby abolished.
x x x x.
The MIAA Charter transferred the Airport Lands and Buildings to MIAA without the Republic
receiving cash, promissory notes or even stock since MIAA is not a stock corporation.
The whereas clauses of the MIAA Charter explain the rationale for the transfer of the Airport
Lands and Buildings to MIAA, thus:
Josef Elvin Campos
WHEREAS, the Manila International Airport as the principal airport of the Philippines
for both international and domestic air traffic, is required to provide standards of
airport accommodation and service comparable with the best airports in the world;
WHEREAS, domestic and other terminals, general aviation and other facilities, have
to be upgraded to meet the current and future air traffic and other demands of
aviation in Metro Manila;
WHEREAS, a management and organization study has indicated that the
objectives of providing high standards of accommodation and service within
the context of a financially viable operation, will best be achieved by a
separate and autonomous body; and
WHEREAS, under Presidential Decree No. 1416, as amended by Presidential
Decree No. 1772, the President of the Philippines is given continuing authority to
reorganize the National Government, which authority includes the creation of
new entities, agencies and instrumentalities of the Government[.] (Emphasis
supplied)
The transfer of the Airport Lands and Buildings from the Bureau of Air Transportation to
MIAA was not meant to transfer beneficial ownership of these assets from the Republic to
MIAA. The purpose was merely to reorganize a division in the Bureau of Air
Transportation into a separate and autonomous body. The Republic remains the
beneficial owner of the Airport Lands and Buildings. MIAA itself is owned solely by the
Republic. No party claims any ownership rights over MIAA's assets adverse to the Republic.
The MIAA Charter expressly provides that the Airport Lands and Buildings "shall not be
disposed through sale or through any other mode unless specifically approved by
the President of the Philippines." This only means that the Republic retained the
beneficial ownership of the Airport Lands and Buildings because under Article 428 of the
Civil Code, only the "owner has the right to x x x dispose of a thing." Since MIAA cannot
dispose of the Airport Lands and Buildings, MIAA does not own the Airport Lands and
Buildings.
At any time, the President can transfer back to the Republic title to the Airport Lands and
Buildings without the Republic paying MIAA any consideration. Under Section 3 of the MIAA
Charter, the President is the only one who can authorize the sale or disposition of the
Airport Lands and Buildings. This only confirms that the Airport Lands and Buildings belong
to the Republic.
e. Real Property Owned by the Republic is Not Taxable
Section 234(a) of the Local Government Code exempts from real estate tax any "[r]eal
property owned by the Republic of the Philippines." Section 234(a) provides:
SEC. 234. Exemptions from Real Property Tax. — The following are exempted
from payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its
political subdivisions except when the beneficial use thereof has been
granted, for consideration or otherwise, to a taxable person;
x x x. (Emphasis supplied)
This exemption should be read in relation with Section 133(o) of the same Code, which
prohibits local governments from imposing "[t]axes, fees or charges of any kind on the
National Government, its agencies and instrumentalities x x x." The real properties owned
by the Republic are titled either in the name of the Republic itself or in the name of agencies
or instrumentalities of the National Government. The Administrative Code allows real
property owned by the Republic to be titled in the name of agencies or instrumentalities of
the national government. Such real properties remain owned by the Republic and continue
to be exempt from real estate tax.
The Republic may grant the beneficial use of its real property to an agency or
instrumentality of the national government. This happens when title of the real property is
transferred to an agency or instrumentality even as the Republic remains the owner of the
real property. Such arrangement does not result in the loss of the tax exemption. Section
234(a) of the Local Government Code states that real property owned by the Republic loses
its tax exemption only if the "beneficial use thereof has been granted, for consideration or
otherwise, to a taxable person." MIAA, as a government instrumentality, is not a taxable
person under Section 133(o) of the Local Government Code. Thus, even if we assume that
the Republic has granted to MIAA the beneficial use of the Airport Lands and Buildings,
such fact does not make these real properties subject to real estate tax.
However, portions of the Airport Lands and Buildings that MIAA leases to private entities
are not exempt from real estate tax. For example, the land area occupied by hangars that
MIAA leases to private corporations is subject to real estate tax. In such a case, MIAA has
Josef Elvin Campos
granted the beneficial use of such land area for a consideration to a taxable person and
therefore such land area is subject to real estate tax. In Lung Center of the Philippines v.
Quezon City, the Court ruled:
Accordingly, we hold that the portions of the land leased to private entities as well as
those parts of the hospital leased to private individuals are not exempt from such
taxes. On the other hand, the portions of the land occupied by the hospital and
portions of the hospital used for its patients, whether paying or non-paying, are
exempt from real property taxes.29
3. Refutation of Arguments of Minority
The minority asserts that the MIAA is not exempt from real estate tax because Section 193
of the Local Government Code of 1991 withdrew the tax exemption of "all persons,
whether natural or juridical" upon the effectivity of the Code. Section 193 provides:
SEC. 193. Withdrawal of Tax Exemption Privileges – Unless otherwise provided in
this Code, tax exemptions or incentives granted to, or presently enjoyed by all
persons, whether natural or juridical, including government-owned or controlled
corporations, except local water districts, cooperatives duly registered under R.A.
No. 6938, non-stock and non-profit hospitals and educational institutions are hereby
withdrawn upon effectivity of this Code. (Emphasis supplied)
The minority states that MIAA is indisputably a juridical person. The minority argues that
since the Local Government Code withdrew the tax exemption of all juridical persons,
then MIAA is not exempt from real estate tax. Thus, the minority declares:
It is evident from the quoted provisions of the Local Government Code that the
withdrawn exemptions from realty tax cover not just GOCCs, but all persons.
To repeat, the provisions lay down the explicit proposition that the withdrawal of
realty tax exemption applies to all persons. The reference to or the inclusion of
GOCCs is only clarificatory or illustrative of the explicit provision.
The term "All persons" encompasses the two classes of persons recognized
under our laws, natural and juridical persons. Obviously, MIAA is not a natural
person. Thus, the determinative test is not just whether MIAA is a GOCC, but
whether MIAA is a juridical person at all. (Emphasis and underscoring in the
original)
The minority posits that the "determinative test" whether MIAA is exempt from local taxation
is its status — whether MIAA is a juridical person or not. The minority also insists that
"Sections 193 and 234 may be examined in isolation from Section 133(o) to ascertain
MIAA's claim of exemption."
The argument of the minority is fatally flawed. Section 193 of the Local Government Code
expressly withdrew the tax exemption of all juridical persons "[u]nless otherwise provided
in this Code." Now, Section 133(o) of the Local Government Code expressly provides
otherwise, specifically prohibiting local governments from imposing any kind of tax on
national government instrumentalities. Section 133(o) states:
SEC. 133. Common Limitations on the Taxing Powers of Local Government Units. –
Unless otherwise provided herein, the exercise of the taxing powers of provinces,
cities, municipalities, and barangays shall not extend to the levy of the following:
xxxx
(o) Taxes, fees or charges of any kinds on the National Government, its agencies
and instrumentalities, and local government units. (Emphasis and underscoring
supplied)
By express mandate of the Local Government Code, local governments cannot impose any
kind of tax on national government instrumentalities like the MIAA. Local governments are
devoid of power to tax the national government, its agencies and instrumentalities. The
taxing powers of local governments do not extend to the national government, its agencies
and instrumentalities, "[u]nless otherwise provided in this Code" as stated in the saving
clause of Section 133. The saving clause refers to Section 234(a) on the exception to the
exemption from real estate tax of real property owned by the Republic.
The minority, however, theorizes that unless exempted in Section 193 itself, all juridical
persons are subject to tax by local governments. The minority insists that the juridical
persons exempt from local taxation are limited to the three classes of entities specifically
enumerated as exempt in Section 193. Thus, the minority states:
x x x Under Section 193, the exemption is limited to (a) local water districts; (b)
cooperatives duly registered under Republic Act No. 6938; and (c) non-stock and
non-profit hospitals and educational institutions. It would be belaboring the obvious
why the MIAA does not fall within any of the exempt entities under Section 193.
(Emphasis supplied)
Josef Elvin Campos
The minority's theory directly contradicts and completely negates Section 133(o) of the
Local Government Code. This theory will result in gross absurdities. It will make the national
government, which itself is a juridical person, subject to tax by local governments since the
national government is not included in the enumeration of exempt entities in Section 193.
Under this theory, local governments can impose any kind of local tax, and not only real
estate tax, on the national government.
Under the minority's theory, many national government instrumentalities with juridical
personalities will also be subject to any kind of local tax, and not only real estate tax. Some
of the national government instrumentalities vested by law with juridical personalities are:
Bangko Sentral ng Pilipinas,30 Philippine Rice Research Institute,31 Laguna Lake
Development Authority,32 Fisheries Development Authority,33 Bases Conversion
Development Authority, Philippine Ports Authority, Cagayan de Oro Port Authority,36 San
34 35
Fernando Port Authority,37 Cebu Port Authority,38 and Philippine National Railways.39

The minority's theory violates Section 133(o) of the Local Government Code which
expressly prohibits local governments from imposing any kind of tax on national government
instrumentalities. Section 133(o) does not distinguish between national government
instrumentalities with or without juridical personalities. Where the law does not distinguish,
courts should not distinguish. Thus, Section 133(o) applies to all national government
instrumentalities, with or without juridical personalities. The determinative test whether
MIAA is exempt from local taxation is not whether MIAA is a juridical person, but whether it
is a national government instrumentality under Section 133(o) of the Local Government
Code. Section 133(o) is the specific provision of law prohibiting local governments from
imposing any kind of tax on the national government, its agencies and instrumentalities.
Section 133 of the Local Government Code starts with the saving clause "[u]nless otherwise
provided in this Code." This means that unless the Local Government Code grants an
express authorization, local governments have no power to tax the national government, its
agencies and instrumentalities. Clearly, the rule is local governments have no power to tax
the national government, its agencies and instrumentalities. As an exception to this rule,
local governments may tax the national government, its agencies and instrumentalities only
if the Local Government Code expressly so provides.
The saving clause in Section 133 refers to the exception to the exemption in Section 234(a)
of the Code, which makes the national government subject to real estate tax when it gives
the beneficial use of its real properties to a taxable entity. Section 234(a) of the Local
Government Code provides:
SEC. 234. Exemptions from Real Property Tax – The following are exempted from
payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person.
x x x. (Emphasis supplied)
Under Section 234(a), real property owned by the Republic is exempt from real estate tax.
The exception to this exemption is when the government gives the beneficial use of the real
property to a taxable entity.
The exception to the exemption in Section 234(a) is the only instance when the national
government, its agencies and instrumentalities are subject to any kind of tax by local
governments. The exception to the exemption applies only to real estate tax and not to any
other tax. The justification for the exception to the exemption is that the real property,
although owned by the Republic, is not devoted to public use or public service but devoted
to the private gain of a taxable person.
The minority also argues that since Section 133 precedes Section 193 and 234 of the Local
Government Code, the later provisions prevail over Section 133. Thus, the minority asserts:
x x x Moreover, sequentially Section 133 antecedes Section 193 and 234. Following
an accepted rule of construction, in case of conflict the subsequent provisions should
prevail. Therefore, MIAA, as a juridical person, is subject to real property taxes, the
general exemptions attaching to instrumentalities under Section 133(o) of the Local
Government Code being qualified by Sections 193 and 234 of the same law.
(Emphasis supplied)
The minority assumes that there is an irreconcilable conflict between Section 133 on one
hand, and Sections 193 and 234 on the other. No one has urged that there is such a
conflict, much less has any one presenteda persuasive argument that there is such a
conflict. The minority's assumption of an irreconcilable conflict in the statutory provisions is
an egregious error for two reasons.
Josef Elvin Campos
First, there is no conflict whatsoever between Sections 133 and 193 because Section 193
expressly admits its subordination to other provisions of the Code when Section 193 states
"[u]nless otherwise provided in this Code." By its own words, Section 193 admits the
superiority of other provisions of the Local Government Code that limit the exercise of the
taxing power in Section 193. When a provision of law grants a power but withholds such
power on certain matters, there is no conflict between the grant of power and the
withholding of power. The grantee of the power simply cannot exercise the power on
matters withheld from its power.
Second, Section 133 is entitled "Common Limitations on the Taxing Powers of Local
Government Units." Section 133 limits the grant to local governments of the power to tax,
and not merely the exercise of a delegated power to tax. Section 133 states that the taxing
powers of local governments "shall not extend to the levy" of any kind of tax on the national
government, its agencies and instrumentalities. There is no clearer limitation on the taxing
power than this.
Since Section 133 prescribes the "common limitations" on the taxing powers of local
governments, Section 133 logically prevails over Section 193 which grants local
governments such taxing powers. By their very meaning and purpose, the "common
limitations" on the taxing power prevail over the grant or exercise of the taxing power. If the
taxing power of local governments in Section 193 prevails over the limitations on such
taxing power in Section 133, then local governments can impose any kind of tax on the
national government, its agencies and instrumentalities — a gross absurdity.
Local governments have no power to tax the national government, its agencies and
instrumentalities, except as otherwise provided in the Local Government Code pursuant to
the saving clause in Section 133 stating "[u]nless otherwise provided in this Code." This
exception — which is an exception to the exemption of the Republic from real estate tax
imposed by local governments — refers to Section 234(a) of the Code. The exception to the
exemption in Section 234(a) subjects real property owned by the Republic, whether titled in
the name of the national government, its agencies or instrumentalities, to real estate tax if
the beneficial use of such property is given to a taxable entity.
The minority also claims that the definition in the Administrative Code of the phrase
"government-owned or controlled corporation" is not controlling. The minority points out that
Section 2 of the Introductory Provisions of the Administrative Code admits that its definitions
are not controlling when it provides:
SEC. 2. General Terms Defined. — Unless the specific words of the text, or the
context as a whole, or a particular statute, shall require a different meaning:
xxxx
The minority then concludes that reliance on the Administrative Code definition is "flawed."
The minority's argument is a non sequitur. True, Section 2 of the Administrative Code
recognizes that a statute may require a different meaning than that defined in the
Administrative Code. However, this does not automatically mean that the definition in the
Administrative Code does not apply to the Local Government Code. Section 2 of the
Administrative Code clearly states that "unless the specific words x x x of a particular statute
shall require a different meaning," the definition in Section 2 of the Administrative Code shall
apply. Thus, unless there is specific language in the Local Government Code defining the
phrase "government-owned or controlled corporation" differently from the definition in the
Administrative Code, the definition in the Administrative Code prevails.
The minority does not point to any provision in the Local Government Code defining the
phrase "government-owned or controlled corporation" differently from the definition in the
Administrative Code. Indeed, there is none. The Local Government Code is silent on the
definition of the phrase "government-owned or controlled corporation." The Administrative
Code, however, expressly defines the phrase "government-owned or controlled
corporation." The inescapable conclusion is that the Administrative Code definition of the
phrase "government-owned or controlled corporation" applies to the Local Government
Code.
The third whereas clause of the Administrative Code states that the Code "incorporates in a
unified document the major structural, functional and procedural principles and rules of
governance." Thus, the Administrative Code is the governing law defining the status and
relationship of government departments, bureaus, offices, agencies and instrumentalities.
Unless a statute expressly provides for a different status and relationship for a specific
government unit or entity, the provisions of the Administrative Code prevail.
The minority also contends that the phrase "government-owned or controlled corporation"
should apply only to corporations organized under the Corporation Code, the general
incorporation law, and not to corporations created by special charters. The minority sees no
Josef Elvin Campos
reason why government corporations with special charters should have a capital stock.
Thus, the minority declares:
I submit that the definition of "government-owned or controlled corporations" under
the Administrative Code refer to those corporations owned by the government or its
instrumentalities which are created not by legislative enactment, but formed and
organized under the Corporation Code through registration with the Securities and
Exchange Commission. In short, these are GOCCs without original charters.
xxxx
It might as well be worth pointing out that there is no point in requiring a capital
structure for GOCCs whose full ownership is limited by its charter to the State or
Republic. Such GOCCs are not empowered to declare dividends or alienate their
capital shares.
The contention of the minority is seriously flawed. It is not in accord with the Constitution
and existing legislations. It will also result in gross absurdities.
First, the Administrative Code definition of the phrase "government-owned or controlled
corporation" does not distinguish between one incorporated under the Corporation Code or
under a special charter. Where the law does not distinguish, courts should not distinguish.
Second, Congress has created through special charters several government-owned
corporations organized as stock corporations. Prime examples are the Land Bank of the
Philippines and the Development Bank of the Philippines. The special charter 40 of the Land
Bank of the Philippines provides:
SECTION 81. Capital. — The authorized capital stock of the Bank shall be nine
billion pesos, divided into seven hundred and eighty million common shares with a
par value of ten pesos each, which shall be fully subscribed by the Government, and
one hundred and twenty million preferred shares with a par value of ten pesos each,
which shall be issued in accordance with the provisions of Sections seventy-seven
and eighty-three of this Code. (Emphasis supplied)
Likewise, the special charter41 of the Development Bank of the Philippines provides:
SECTION 7. Authorized Capital Stock – Par value. — The capital stock of the Bank
shall be Five Billion Pesos to be divided into Fifty Million common shares with par
value of P100 per share. These shares are available for subscription by the National
Government. Upon the effectivity of this Charter, the National Government shall
subscribe to Twenty-Five Million common shares of stock worth Two Billion Five
Hundred Million which shall be deemed paid for by the Government with the net
asset values of the Bank remaining after the transfer of assets and liabilities as
provided in Section 30 hereof. (Emphasis supplied)
Other government-owned corporations organized as stock corporations under their special
charters are the Philippine Crop Insurance Corporation, 42 Philippine International Trading
Corporation,43 and the Philippine National Bank 44 before it was reorganized as a stock
corporation under the Corporation Code. All these government-owned corporations
organized under special charters as stock corporations are subject to real estate tax on real
properties owned by them. To rule that they are not government-owned or controlled
corporations because they are not registered with the Securities and Exchange Commission
would remove them from the reach of Section 234 of the Local Government Code, thus
exempting them from real estate tax.
Third, the government-owned or controlled corporations created through special charters
are those that meet the two conditions prescribed in Section 16, Article XII of the
Constitution. The first condition is that the government-owned or controlled corporation must
be established for the common good. The second condition is that the government-owned
or controlled corporation must meet the test of economic viability. Section 16, Article XII of
the 1987 Constitution provides:
common good and subject to the test of economic viability. (Emphasis and
The Constitution expressly authorizes the legislature to create "government-owned or
controlled corporations" through special charters only if these entities are required to meet
the twin conditions of common good and economic viability. In other words, Congress has
no power to create government-owned or controlled corporations with special charters
unless they are made to comply with the two conditions of common good and economic
viability. The test of economic viability applies only to government-owned or controlled
corporations that perform economic or commercial activities and need to compete in the
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market place. Being essentially economic vehicles of the State for the common good —
meaning for economic development purposes — these government-owned or controlled
corporations with special charters are usually organized as stock corporations just like
ordinary private corporations.
In contrast, government instrumentalities vested with corporate powers and performing
governmental or public functions need not meet the test of economic viability. These
instrumentalities perform essential public services for the common good, services that every
modern State must provide its citizens. These instrumentalities need not be economically
viable since the government may even subsidize their entire operations. These
instrumentalities are not the "government-owned or controlled corporations" referred to in
Section 16, Article XII of the 1987 Constitution.
Thus, the Constitution imposes no limitation when the legislature creates government
instrumentalities vested with corporate powers but performing essential governmental or
public functions. Congress has plenary authority to create government instrumentalities
vested with corporate powers provided these instrumentalities perform essential
government functions or public services. However, when the legislature creates through
special charters corporations that perform economic or commercial activities, such entities
— known as "government-owned or controlled corporations" — must meet the test of
economic viability because they compete in the market place.
This is the situation of the Land Bank of the Philippines and the Development Bank of the
Philippines and similar government-owned or controlled corporations, which derive their
income to meet operating expenses solely from commercial transactions in competition with
the private sector. The intent of the Constitution is to prevent the creation of government-
owned or controlled corporations that cannot survive on their own in the market place and
thus merely drain the public coffers.
Commissioner Blas F. Ople, proponent of the test of economic viability, explained to the
Constitutional Commission the purpose of this test, as follows:
MR. OPLE: Madam President, the reason for this concern is really that when the
government creates a corporation, there is a sense in which this corporation
becomes exempt from the test of economic performance. We know what happened
in the past. If a government corporation loses, then it makes its claim upon the
taxpayers' money through new equity infusions from the government and what is
always invoked is the common good. That is the reason why this year, out of a
budget of P115 billion for the entire government, about P28 billion of this will go into
equity infusions to support a few government financial institutions. And this is all
taxpayers' money which could have been relocated to agrarian reform, to social
services like health and education, to augment the salaries of grossly underpaid
public employees. And yet this is all going down the drain.
Therefore, when we insert the phrase "ECONOMIC VIABILITY" together with the
"common good," this becomes a restraint on future enthusiasts for state capitalism to
excuse themselves from the responsibility of meeting the market test so that they
become viable. And so, Madam President, I reiterate, for the committee's
consideration and I am glad that I am joined in this proposal by Commissioner Foz,
the insertion of the standard of "ECONOMIC VIABILITY OR THE ECONOMIC
TEST," together with the common good.45
Father Joaquin G. Bernas, a leading member of the Constitutional Commission, explains in
his textbook The 1987 Constitution of the Republic of the Philippines: A Commentary:
The second sentence was added by the 1986 Constitutional Commission. The
significant addition, however, is the phrase "in the interest of the common good and
subject to the test of economic viability." The addition includes the ideas that they
must show capacity to function efficiently in business and that they should not go into
activities which the private sector can do better. Moreover, economic viability is more
than financial viability but also includes capability to make profit and generate
benefits not quantifiable in financial terms.46 (Emphasis supplied)
Clearly, the test of economic viability does not apply to government entities vested with
corporate powers and performing essential public services. The State is obligated to render
essential public services regardless of the economic viability of providing such service. The
non-economic viability of rendering such essential public service does not excuse the State
from withholding such essential services from the public.
However, government-owned or controlled corporations with special charters, organized
essentially for economic or commercial objectives, must meet the test of economic viability.
These are the government-owned or controlled corporations that are usually organized
under their special charters as stock corporations, like the Land Bank of the Philippines and
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the Development Bank of the Philippines. These are the government-owned or controlled
corporations, along with government-owned or controlled corporations organized under the
Corporation Code, that fall under the definition of "government-owned or controlled
corporations" in Section 2(10) of the Administrative Code.
The MIAA need not meet the test of economic viability because the legislature did not
create MIAA to compete in the market place. MIAA does not compete in the market place
because there is no competing international airport operated by the private sector. MIAA
performs an essential public service as the primary domestic and international airport of the
Philippines. The operation of an international airport requires the presence of personnel
from the following government agencies:
1. The Bureau of Immigration and Deportation, to document the arrival and departure
of passengers, screening out those without visas or travel documents, or those with
hold departure orders;
2. The Bureau of Customs, to collect import duties or enforce the ban on prohibited
importations;
3. The quarantine office of the Department of Health, to enforce health measures
against the spread of infectious diseases into the country;
4. The Department of Agriculture, to enforce measures against the spread of plant
and animal diseases into the country;
5. The Aviation Security Command of the Philippine National Police, to prevent the
entry of terrorists and the escape of criminals, as well as to secure the airport
premises from terrorist attack or seizure;
6. The Air Traffic Office of the Department of Transportation and Communications, to
authorize aircraft to enter or leave Philippine airspace, as well as to land on, or take
off from, the airport; and
7. The MIAA, to provide the proper premises — such as runway and buildings — for
the government personnel, passengers, and airlines, and to manage the airport
operations.
All these agencies of government perform government functions essential to the operation
of an international airport.
MIAA performs an essential public service that every modern State must provide its
citizens. MIAA derives its revenues principally from the mandatory fees and charges MIAA
imposes on passengers and airlines. The terminal fees that MIAA charges every passenger
are regulatory or administrative fees 47 and not income from commercial transactions.
MIAA falls under the definition of a government instrumentality under Section 2(10) of the
Introductory Provisions of the Administrative Code, which provides:
SEC. 2. General Terms Defined. – x x x x
(10) Instrumentality refers to any agency of the National Government, not integrated
within the department framework, vested with special functions or jurisdiction by law,
endowed with some if not all corporate powers, administering special funds, and
enjoying operational autonomy, usually through a charter. x x x (Emphasis supplied)
The fact alone that MIAA is endowed with corporate powers does not make MIAA a
government-owned or controlled corporation. Without a change in its capital structure, MIAA
remains a government instrumentality under Section 2(10) of the Introductory Provisions of
the Administrative Code. More importantly, as long as MIAA renders essential public
services, it need not comply with the test of economic viability. Thus, MIAA is outside the
scope of the phrase "government-owned or controlled corporations" under Section 16,
Article XII of the 1987 Constitution.
The minority belittles the use in the Local Government Code of the phrase "government-
owned or controlled corporation" as merely "clarificatory or illustrative." This is fatal. The
1987 Constitution prescribes explicit conditions for the creation of "government-owned or
controlled corporations." The Administrative Code defines what constitutes a "government-
owned or controlled corporation." To belittle this phrase as "clarificatory or illustrative" is
grave error.
To summarize, MIAA is not a government-owned or controlled corporation under Section
2(13) of the Introductory Provisions of the Administrative Code because it is not organized
as a stock or non-stock corporation. Neither is MIAA a government-owned or controlled
corporation under Section 16, Article XII of the 1987 Constitution because MIAA is not
required to meet the test of economic viability. MIAA is a government instrumentality vested
with corporate powers and performing essential public services pursuant to Section 2(10) of
the Introductory Provisions of the Administrative Code. As a government instrumentality,
MIAA is not subject to any kind of tax by local governments under Section 133(o) of the
Local Government Code. The exception to the exemption in Section 234(a) does not apply
Josef Elvin Campos
to MIAA because MIAA is not a taxable entity under the Local Government Code. Such
exception applies only if the beneficial use of real property owned by the Republic is given
to a taxable entity.
Finally, the Airport Lands and Buildings of MIAA are properties devoted to public use and
thus are properties of public dominion. Properties of public dominion are owned by the State
or the Republic. Article 420 of the Civil Code provides:
Art. 420. The following things are property of public dominion:
(1) Those 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;
(2) Those 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. (Emphasis
supplied)
The term "ports x x x constructed by the State" includes airports and seaports. The Airport
Lands and Buildings of MIAA are intended for public use, and at the very least intended for
public service. Whether intended for public use or public service, the Airport Lands and
Buildings are properties of public dominion. As properties of public dominion, the Airport
Lands and Buildings are owned by the Republic and thus exempt from real estate tax under
Section 234(a) of the Local Government Code.
4. Conclusion
Under Section 2(10) and (13) of the Introductory Provisions of the Administrative Code,
which governs the legal relation and status of government units, agencies and offices within
the entire government machinery, MIAA is a government instrumentality and not a
government-owned or controlled corporation. Under Section 133(o) of the Local
Government Code, MIAA as a government instrumentality is not a taxable person because
it is not subject to "[t]axes, fees or charges of any kind" by local governments. The only
exception is when MIAA leases its real property to a "taxable person" as provided in Section
234(a) of the Local Government Code, in which case the specific real property leased
becomes subject to real estate tax. Thus, only portions of the Airport Lands and Buildings
leased to taxable persons like private parties are subject to real estate tax by the City of
Parañaque.
Under Article 420 of the Civil Code, the Airport Lands and Buildings of MIAA, being devoted
to public use, are properties of public dominion and thus owned by the State or the Republic
of the Philippines. Article 420 specifically mentions "ports x x x constructed by the State,"
which includes public airports and seaports, as properties of public dominion and owned by
the Republic. As properties of public dominion owned by the Republic, there is no doubt
whatsoever that the Airport Lands and Buildings are expressly exempt from real estate tax
under Section 234(a) of the Local Government Code. This Court has also repeatedly ruled
that properties of public dominion are not subject to execution or foreclosure sale.
WHEREFORE, we GRANT the petition. We SET ASIDE the assailed Resolutions of the
Court of Appeals of 5 October 2001 and 27 September 2002 in CA-G.R. SP No. 66878.
We DECLARE the Airport Lands and Buildings of the Manila International Airport
Authority EXEMPT from the real estate tax imposed by the City of Parañaque. We
declare VOID all the real estate tax assessments, including the final notices of real estate
tax delinquencies, issued by the City of Parañaque on the Airport Lands and Buildings of
the Manila International Airport Authority, except for the portions that the Manila
International Airport Authority has leased to private parties. We also declare VOID the
assailed auction sale, and all its effects, of the Airport Lands and Buildings of the Manila
International Airport Authority.
No costs.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-
Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia,
Velasco, Jr., J.J., concur.
x-------------------------------------------------------------------------------x
DISSENTING OPINION
TINGA, J. :
The legally correct resolution of this petition would have had the added benefit of an utterly
fair and equitable result – a recognition of the constitutional and statutory power of the City
of Parañaque to impose real property taxes on the Manila International Airport Authority
Josef Elvin Campos
(MIAA), but at the same time, upholding a statutory limitation that prevents the City of
Parañaque from seizing and conducting an execution sale over the real properties of MIAA.
In the end, all that the City of Parañaque would hold over the MIAA is a limited lien,
unenforceable as it is through the sale or disposition of MIAA properties. Not only is this the
legal effect of all the relevant constitutional and statutory provisions applied to this case, it
also leaves the room for negotiation for a mutually acceptable resolution between the City of
Parañaque and MIAA.
Instead, with blind but measured rage, the majority today veers wildly off-course, shattering
statutes and judicial precedents left and right in order to protect the precious Ming vase that
is the Manila International Airport Authority (MIAA). While the MIAA is left unscathed, it is
surrounded by the wreckage that once was the constitutional policy, duly enacted into law,
that was local autonomy. Make no mistake, the majority has virtually declared war on the
seventy nine (79) provinces, one hundred seventeen (117) cities, and one thousand five
hundred (1,500) municipalities of the Philippines. 1
The icing on this inedible cake is the strained and purposely vague rationale used to justify
the majority opinion. Decisions of the Supreme Court are expected to provide clarity to the
parties and to students of jurisprudence, as to what the law of the case is, especially when
the doctrines of long standing are modified or clarified. With all due respect, the decision in
this case is plainly so, so wrong on many levels. More egregious, in the majority's resolve to
spare the Manila International Airport Authority (MIAA) from liability for real estate taxes, no
clear-cut rule emerges on the important question of the power of local government units
(LGUs) to tax government corporations, instrumentalities or agencies.
The majority would overturn sub silencio, among others, at least one dozen precedents
enumerated below:
1) Mactan-Cebu International Airport Authority v. Hon. Marcos, 2 the leading case penned in
1997 by recently retired Chief Justice Davide, which held that the express withdrawal by the
Local Government Code of previously granted exemptions from realty taxes applied to
instrumentalities and government-owned or controlled corporations (GOCCs) such as the
Mactan-Cebu International Airport Authority (MCIAA). The majority invokes the ruling in
Basco v. Pagcor,3 a precedent discredited in Mactan, and a vanguard of a doctrine so
noxious to the concept of local government rule that the Local Government Code was
drafted precisely to counter such philosophy. The efficacy of several rulings that expressly
rely on Mactan, such as PHILRECA v. DILG Secretary, 4 City Government of San Pablo v.
Hon. Reyes5 is now put in question.
2) The rulings in National Power Corporation v. City of Cabanatuan, 6 wherein the Court,
through Justice Puno, declared that the National Power Corporation, a GOCC, is liable for
franchise taxes under the Local Government Code, and succeeding cases that have relied
on it such as Batangas Power Corp. v. Batangas City 7 The majority now states that deems
instrumentalities as defined under the Administrative Code of 1987 as purportedly beyond
the reach of any form of taxation by LGUs, stating "[l]ocal governments are devoid of power
to tax the national government, its agencies and instrumentalities." 8 Unfortunately, using the
definition employed by the majority, as provided by Section 2(d) of the Administrative Code,
GOCCs are also considered as instrumentalities, thus leading to the astounding conclusion
that GOCCs may not be taxed by LGUs under the Local Government Code.
3) Lung Center of the Philippines v. Quezon City, 9 wherein a unanimous en banc Court held
that the Lung Center of the Philippines may be liable for real property taxes. Using the
majority's reasoning, the Lung Center would be properly classified as an instrumentality
which the majority now holds as exempt from all forms of local taxation. 10
4) City of Davao v. RTC,11 where the Court held that the Government Service Insurance
System (GSIS) was liable for real property taxes for the years 1992 to 1994, its previous
exemption having been withdrawn by the enactment of the Local Government Code. 12 This
decision, which expressly relied on Mactan, would be directly though silently overruled by
the majority.
5) The common essence of the Court's rulings in the two Philippine Ports Authority v. City of
Iloilo,13 cases penned by Justices Callejo and Azcuna respectively, which relied in part on
Mactan in holding the Philippine Ports Authority (PPA) liable for realty taxes,
notwithstanding the fact that it is a GOCC. Based on the reasoning of the majority, the PPA
cannot be considered a GOCC. The reliance of these cases on Mactan, and its rationale for
holding governmental entities like the PPA liable for local government taxation is mooted by
the majority.
6) The 1963 precedent of Social Security System Employees Association v.
Soriano,14 which declared the Social Security Commission (SSC) as a GOCC performing
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proprietary functions. Based on the rationale employed by the majority, the Social Security
System is not a GOCC. Or perhaps more accurately, "no longer" a GOCC.
7) The decision penned by Justice (now Chief Justice) Panganiban, Light Rail Transit
Authority v. Central Board of Assessment. 15 The characterization therein of the Light Rail
Transit Authority (LRTA) as a "service-oriented commercial endeavor" whose patrimonial
property is subject to local taxation is now rendered inconsequential, owing to the majority's
thinking that an entity such as the LRTA is itself exempt from local government taxation 16,
irrespective of the functions it performs. Moreover, based on the majority's criteria, LRTA is
not a GOCC.
8) The cases of Teodoro v. National Airports Corporation 17 and Civil Aeronautics
Administration v. Court of Appeals. 18 wherein the Court held that the predecessor agency of
the MIAA, which was similarly engaged in the operation, administration and management of
the Manila International Agency, was engaged in the exercise of proprietary, as opposed to
sovereign functions. The majority would hold otherwise that the property maintained by
MIAA is actually patrimonial, thus implying that MIAA is actually engaged in sovereign
functions.
9) My own majority in Phividec Industrial Authority v. Capitol Steel, 19 wherein the Court held
that the Phividec Industrial Authority, a GOCC, was required to secure the services of the
Office of the Government Corporate Counsel for legal representation. 20 Based on the
reasoning of the majority, Phividec would not be a GOCC, and the mandate of the Office of
the Government Corporate Counsel extends only to GOCCs.
10) Two decisions promulgated by the Court just last month (June 2006), National Power
Corporation v. Province of Isabela21 and GSIS v. City Assessor of Iloilo City. 22 In the former,
the Court pronounced that "[a]lthough as a general rule, LGUs cannot impose taxes, fees,
or charges of any kind on the National Government, its agencies and instrumentalities, this
rule admits of an exception, i.e., when specific provisions of the LGC authorize the LGUs to
impose taxes, fees or charges on the aforementioned entities." Yet the majority now rules
that the exceptions in the LGC no longer hold, since "local governments are devoid of
power to tax the national government, its agencies and instrumentalities." 23 The ruling in the
latter case, which held the GSIS as liable for real property taxes, is now put in jeopardy by
the majority's ruling.
There are certainly many other precedents affected, perhaps all previous jurisprudence
regarding local government taxation vis-a-vis government entities, as well as any previous
definitions of GOCCs, and previous distinctions between the exercise of governmental and
proprietary functions (a distinction laid down by this Court as far back as 1916 24). What is
the reason offered by the majority for overturning or modifying all these precedents and
doctrines? None is given, for the majority takes comfort instead in the pretense that these
precedents never existed. Only children should be permitted to subscribe to the theory that
something bad will go away if you pretend hard enough that it does not exist.
I.
Case Should Have Been Decided
Following Mactan Precedent
The core issue in this case, whether the MIAA is liable to the City of Parañaque for real
property taxes under the Local Government Code, has already been decided by this Court
in the Mactan case, and should have been resolved by simply applying precedent.
Mactan Explained
A brief recall of the Mactan case is in order. The Mactan-Cebu International Airport
Authority (MCIAA) claimed that it was exempt from payment of real property taxes to the
City of Cebu, invoking the specific exemption granted in Section 14 of its charter, Republic
Act No. 6958, and its status as an instrumentality of the government performing
governmental functions.25 Particularly, MCIAA invoked Section 133 of the Local
Government Code, precisely the same provision utilized by the majority as the basis for
MIAA's exemption. Section 133 reads:
Sec. 133. Common Limitations on the Taxing Powers of Local Government Units.— Unless
otherwise provided herein, the exercise of the taxing powers of provinces, cities,
municipalities, and barangays shall not extend to the levy of the following:
xxx
(o) Taxes, fees or charges of any kind on the National Government, its agencies and
instrumentalities and local government units. (emphasis and underscoring supplied).
However, the Court in Mactan noted that Section 133 qualified the exemption of the
National Government, its agencies and instrumentalities from local taxation with the phrase
"unless otherwise provided herein." It then considered the other relevant provisions of the
Local Government Code, particularly the following:
Josef Elvin Campos
SEC. 193. Withdrawal of Tax Exemption Privileges. – Unless otherwise provided in this
Code, tax exemption or incentives granted to, or enjoyed by all persons, whether natural or
juridical, including government-owned and controlled corporations, except local water
districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit
hospitals and educational institutions, are hereby withdrawn upon the effectivity of this
Code.26
SECTION 232. Power to Levy Real Property Tax. – A province or city or a municipality
within the Metropolitan Manila area may levy an annual ad valorem tax on real property
such as land, building, machinery, and other improvements not hereafter specifically
exempted.27
SECTION 234. Exemptions from Real Property Tax. -- The following are exempted from
(a) Real property owned by the Republic of the Philippines or any of its political subdivisions
except when the beneficial use thereof has been granted, for consideration or otherwise, to
a taxable person:
(b) Charitable institutions, churches, parsonages or convents appurtenant thereto,
mosques, non-profit or religious cemeteries and all lands, buildings, and improvements
actually, directly, and exclusively used for religious charitable or educational purposes;
(c) All machineries and equipment that are actually, directly and exclusively used by local
water districts and government-owned and controlled corporations engaged in the
distribution of water and/or generation and transmission of electric power;
(d) All real property owned by duly registered cooperatives as provided for under R.A. No.
6938; and
(e) Machinery and equipment used for pollution control and environmental protection.
Except as provided herein, any exemption from payment of real property tax previously
granted to, or presently enjoyed by, all persons, whether natural or juridical, including all
government-owned or controlled corporations are hereby withdrawn upon the effectivity of
this Code.28
Clearly, Section 133 was not intended to be so absolute a prohibition on the power of LGUs
to tax the National Government, its agencies and instrumentalities, as evidenced by these
cited provisions which "otherwise provided." But what was the extent of the limitation under
Section 133? This is how the Court, correctly to my mind, defined the parameters in
Mactan:
The foregoing sections of the LGC speak of: (a) the limitations on the taxing powers of local
government units and the exceptions to such limitations; and (b) the rule on tax exemptions
and the exceptions thereto. The use of exceptions or provisos in these sections, as shown
by the following clauses:
(1) "unless otherwise provided herein" in the opening paragraph of Section 133;
(2) "Unless otherwise provided in this Code" in Section 193;
(3) "not hereafter specifically exempted" in Section 232; and
(4) "Except as provided herein" in the last paragraph of Section 234
initially hampers a ready understanding of the sections. Note, too, that the aforementioned
clause in Section 133 seems to be inaccurately worded. Instead of the clause "unless
otherwise provided herein," with the "herein" to mean, of course, the section, it should have
used the clause "unless otherwise provided in this Code." The former results in absurdity
since the section itself enumerates what are beyond the taxing powers of local government
units and, where exceptions were intended, the exceptions are explicitly indicated in the
next. For instance, in item (a) which excepts income taxes "when levied on banks and other
financial institutions"; item (d) which excepts "wharfage on wharves constructed and
maintained by the local government unit concerned"; and item (1) which excepts taxes, fees
and charges for the registration and issuance of licenses or permits for the driving of
"tricycles." It may also be observed that within the body itself of the section, there are
exceptions which can be found only in other parts of the LGC, but the section
interchangeably uses therein the clause, "except as otherwise provided herein" as in items
(c) and (i), or the clause "except as provided in this Code" in item (j). These clauses would
be obviously unnecessary or mere surplusages if the opening clause of the section were
"Unless otherwise provided in this Code" instead of "Unless otherwise provided herein." In
any event, even if the latter is used, since under Section 232 local government units have
the power to levy real property tax, except those exempted therefrom under Section 234,
then Section 232 must be deemed to qualify Section 133.
Thus, reading together Sections 133, 232, and 234 of the LGC, we conclude that as a
general rule, as laid down in Section 133, the taxing powers of local government units
cannot extend to the levy of, inter alia, "taxes, fees and charges of any kind on the National
Josef Elvin Campos
Government, its agencies and instrumentalities, and local government units"; however,
pursuant to Section 232, provinces, cities, and municipalities in the Metropolitan Manila
Area may impose the real property tax except on, inter alia, "real property owned by the
Republic of the Philippines or any of its political subdivisions except when the beneficial use
thereof has been granted, for consideration or otherwise, to a taxable person," as provided
in item (a) of the first paragraph of Section 234.
As to tax exemptions or incentives granted to or presently enjoyed by natural or judicial
persons, including government-owned and controlled corporations, Section 193 of the LGC
prescribes the general rule, viz., they are withdrawn upon the effectivity of the LGC, except
those granted to local water districts, cooperatives duly registered under R.A. No. 6938,
non-stock and non-profit hospitals and educational institutions, and unless otherwise
provided in the LGC. The latter proviso could refer to Section 234 which enumerates the
properties exempt from real property tax. But the last paragraph of Section 234 further
qualifies the retention of the exemption insofar as real property taxes are concerned by
limiting the retention only to those enumerated therein; all others not included in the
enumeration lost the privilege upon the effectivity of the LGC. Moreover, even as to real
property owned by the Republic of the Philippines or any of its political subdivisions covered
by item (a) of the first paragraph of Section 234, the exemption is withdrawn if the beneficial
use of such property has been granted to a taxable person for consideration or otherwise.
Since the last paragraph of Section 234 unequivocally withdrew, upon the effectivity of the
LGC, exemptions from payment of real property taxes granted to natural or juridical
persons, including government-owned or controlled corporations, except as provided in the
said section, and the petitioner is, undoubtedly, a government-owned corporation, it
necessarily follows that its exemption from such tax granted it in Section 14 of its Charter,
R.A. No. 6958, has been withdrawn. Any claim to the contrary can only be justified if the
petitioner can seek refuge under any of the exceptions provided in Section 234, but not
under Section 133, as it now asserts, since, as shown above, the said section is qualified by
Sections 232 and 234.29
The Court in Mactan acknowledged that under Section 133, instrumentalities were generally
exempt from all forms of local government taxation, unless otherwise provided in the Code.
On the other hand, Section 232 "otherwise provided" insofar as it allowed LGUs to levy an
ad valorem real property tax, irrespective of who owned the property. At the same time, the
imposition of real property taxes under Section 232 is in turn qualified by the phrase "not
hereinafter specifically exempted." The exemptions from real property taxes are
enumerated in Section 234, which specifically states that only real properties owned "by the
Republic of the Philippines or any of its political subdivisions" are exempted from the
payment of the tax. Clearly, instrumentalities or GOCCs do not fall within the exceptions
under Section 234.30
Mactan Overturned the
Precedents Now Relied
Upon by the Majority
But the petitioners in Mactan also raised the Court's ruling in Basco v. PAGCOR, 31 decided
before the enactment of the Local Government Code. The Court in Basco declared the
PAGCOR as exempt from local taxes, justifying the exemption in this wise:
Local governments have no power to tax instrumentalities of the National Government.
PAGCOR is a government owned or controlled corporation with an original charter, PD
1869. All of its shares of stocks are owned by the National Government. In addition to its
corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers xxx
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is
governmental, which places it in the category of an agency or instrumentality of the
Government. Being an instrumentality of the Government, PAGCOR should be and actually
is exempt from local taxes. Otherwise, its operation might be burdened, impeded or
subjected to control by a mere Local government.
"The states have no power by taxation or otherwise, to retard impede, burden or in any
manner control the operation of constitutional laws enacted by Congress to carry into
execution the powers vested in the federal government." (McCulloch v. Marland, 4 Wheat
316, 4 L Ed. 579)
governments.
"Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of
power on the part of the States to touch, in that way (taxation) at least, the instrumentalities
of the United States (Johnson v. Maryland, 254 US 51) and it can be agreed that no state or
political subdivision can regulate a federal instrumentality in such a way as to prevent it from
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consummating its federal responsibilities, or even to seriously burden it in the
accomplishment of them." (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis
supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of
what local authorities may perceive to be undesirable activates or enterprise using the
power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (McCulloch
v. Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very
entity which has the inherent power to wield it. 32
Basco is as strident a reiteration of the old guard view that frowned on the principle of local
autonomy, especially as it interfered with the prerogatives and privileges of the national
government. Also consider the following citation from Maceda v. Macaraig, 33 decided the
same year as Basco. Discussing the rule of construction of tax exemptions on government
instrumentalities, the sentiments are of a similar vein.
Moreover, it is a recognized principle that the rule on strict interpretation does not apply in
the case of exemptions in favor of a government political subdivision or instrumentality.
The basis for applying the rule of strict construction to statutory provisions granting tax
exemptions or deductions, even more obvious than with reference to the affirmative or
levying provisions of tax statutes, is to minimize differential treatment and foster impartiality,
fairness, and equality of treatment among tax payers.
The reason for the rule does not apply in the case of exemptions running to the benefit of
the government itself or its agencies. In such case the practical effect of an exemption is
merely to reduce the amount of money that has to be handled by government in the course
of its operations. For these reasons, provisions granting exemptions to government
agencies may be construed liberally, in favor of non tax-liability of such agencies.
In the case of property owned by the state or a city or other public corporations, the express
exemption should not be construed with the same degree of strictness that applies to
exemptions contrary to the policy of the state, since as to such property "exemption is the
rule and taxation the exception."34
Strikingly, the majority cites these two very cases and the stodgy rationale provided therein.
This evinces the perspective from which the majority is coming from. It is admittedly a
viewpoint once shared by this Court, and en vogue prior to the enactment of the Local
Government Code of 1991.
However, the Local Government Code of 1991 ushered in a new ethos on how the art of
governance should be practiced in the Philippines, conceding greater powers once held in
the private reserve of the national government to LGUs. The majority might have private
qualms about the wisdom of the policy of local autonomy, but the members of the Court are
not expected to substitute their personal biases for the legislative will, especially when the
1987 Constitution itself promotes the principle of local autonomy.
Article II. Declaration of Principles and State Policies
xxx
Article X. Local Government
xxx
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Section 3. The Congress shall enact a local government code which shall provide for a
and operation of the local units.
xxx
Section 5. Each local government unit shall have the power to create its own sources of
revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as
the Congress may provide, consistent with the basic policy of local autonomy. Such taxes,
fees, and charges shall accrue exclusively to the local governments.
xxx
The Court in Mactan recognized that a new day had dawned with the enactment of the 1987
Constitution and the Local Government Code of 1991. Thus, it expressly rejected the
contention of the MCIAA that Basco was applicable to them. In doing so, the language of
the Court was dramatic, if only to emphasize how monumental the shift in philosophy was
with the enactment of the Local Government Code:
Josef Elvin Campos
Accordingly, the position taken by the [MCIAA] is untenable. Reliance on Basco v.
Philippine Amusement and Gaming Corporation is unavailing since it was decided before
the effectivity of the [Local Government Code]. Besides, nothing can prevent Congress from
decreeing that even instrumentalities or agencies of the Government performing
governmental functions may be subject to tax. Where it is done precisely to fulfill a
constitutional mandate and national policy, no one can doubt its wisdom. 35 (emphasis
supplied)
The Court Has Repeatedly
Reaffirmed Mactan Over the
Precedents Now Relied Upon
By the Majority
Since then and until today, the Court has been emphatic in declaring the Basco doctrine as
dead. The notion that instrumentalities may be subjected to local taxation by LGUs was
again affirmed in National Power Corporation v. City of Cabanatuan, 36 which was penned by
Justice Puno. NPC or Napocor, invoking its continued exemption from payment of franchise
taxes to the City of Cabanatuan, alleged that it was an instrumentality of the National
Government which could not be taxed by a city government. To that end, Basco was cited
by NPC. The Court had this to say about Basco.
xxx[T]he doctrine in Basco vs. Philippine Amusement and Gaming Corporation relied upon
by the petitioner to support its claim no longer applies. To emphasize, the Basco case was
decided prior to the effectivity of the LGC, when no law empowering the local government
units to tax instrumentalities of the National Government was in effect. However, as this
Court ruled in the case of Mactan Cebu International Airport Authority (MCIAA) vs. Marcos,
nothing prevents Congress from decreeing that even instrumentalities or agencies of the
government performing governmental functions may be subject to tax. In enacting the LGC,
Congress exercised its prerogative to tax instrumentalities and agencies of government as it
sees fit. Thus, after reviewing the specific provisions of the LGC, this Court held that
MCIAA, although an instrumentality of the national government, was subject to real property
tax.37
In the 2003 case of Philippine Ports Authority v. City of Iloilo, 38 the Court, in the able
ponencia of Justice Azcuna, affirmed the levy of realty taxes on the PPA. Although the
taxes were assessed under the old Real Property Tax Code and not the Local Government
Code, the Court again cited Mactan to refute PPA's invocation of Basco as the basis of its
exemption.
[Basco] did not absolutely prohibit local governments from taxing government
instrumentalities. In fact we stated therein:
The power of local government to "impose taxes and fees" is always subject to "limitations"
which Congress may provide by law. Since P.D. 1869 remains an "operative" law until
"amended, repealed or revoked". . . its "exemption clause" remains an exemption to the
exercise of the power of local governments to impose taxes and fees.
Furthermore, in the more recent case of Mactan Cebu International Airport Authority v.
Marcos, where the Basco case was similarly invoked for tax exemption, we stated:
"[N]othing can prevent Congress from decreeing that even instrumentalities or agencies of
the Government performing governmental functions may be subject to tax. Where it is done
precisely to fulfill a constitutional mandate and national policy, no one can doubt its
wisdom." The fact that tax exemptions of government-owned or controlled corporations
have been expressly withdrawn by the present Local Government Code clearly attests
against petitioner's claim of absolute exemption of government instrumentalities from local
taxation.39
Just last month, the Court in National Power Corporation v. Province of Isabela 40 again
rejected Basco in emphatic terms. Held the Court, through Justice Callejo, Sr.:
Thus, the doctrine laid down in the Basco case is no longer true. In the Cabanatuan case,
the Court noted primarily that the Basco case was decided prior to the effectivity of the
LGC, when no law empowering the local government units to tax instrumentalities of the
National Government was in effect. It further explained that in enacting the LGC, Congress
empowered the LGUs to impose certain taxes even on instrumentalities of the National
Government.41
The taxability of the PPA recently came to fore in Philippine Ports Authority v. City of
Iloilo42 case, a decision also penned by Justice Callejo, Sr., wherein the Court affirmed the
sale of PPA's properties at public auction for failure to pay realty taxes. The Court again
reiterated that "it was the intention of Congress to withdraw the tax exemptions granted to or
presently enjoyed by all persons, including government-owned or controlled corporations,
upon the effectivity" of the Code. 43 The Court in the second Public Ports Authority case
Josef Elvin Campos
likewise cited Mactan as providing the "raison d'etre for the withdrawal of the exemption,"
namely, "the State policy to ensure autonomy to local governments and the objective of the
[Local Government Code] that they enjoy genuine and meaningful local autonomy to enable
them to attain their fullest development as self-reliant communities. . . . " 44
Last year, the Court, in City of Davao v. RTC, 45 affirmed that the legislated exemption from
real property taxes of the Government Service Insurance System (GSIS) was removed
under the Local Government Code. Again, Mactan was relied upon as the governing
precedent. The removal of the tax exemption stood even though the then GSIS
law46 prohibited the removal of GSIS' tax exemptions unless the exemption was specifically
repealed, "and a provision is enacted to substitute the declared policy of exemption from
any and all taxes as an essential factor for the solvency of the fund." 47 The Court, citing
established doctrines in statutory construction and Duarte v. Dade 48 ruled that such
proscription on future legislation was itself prohibited, as "the legislature cannot bind a
future legislature to a particular mode of repeal." 49
And most recently, just less than one month ago, the Court, through Justice Corona in
Government Service Insurance System v. City Assessor of Iloilo 50 again affirmed that the
Local Government Code removed the previous exemption from real property taxes of the
GSIS. Again Mactan was cited as having "expressly withdrawn the [tax] exemption of the
[GOCC].51
Clearly then, Mactan is not a stray or unique precedent, but the basis of a jurisprudential
rule employed by the Court since its adoption, the doctrine therein consistent with the Local
Government Code. Corollarily, Basco, the polar opposite of Mactan has been emphatically
rejected and declared inconsistent with the Local Government Code.
II.
Majority, in Effectively Overturning Mactan,
Refuses to Say Why Mactan Is Wrong
The majority cites Basco in support. It does not cite Mactan, other than an incidental
reference that it is relied upon by the respondents. 52 However, the ineluctable conclusion is
that the majority rejects the rationale and ruling in Mactan. The majority provides for a wildly
different interpretation of Section 133, 193 and 234 of the Local Government Code than that
employed by the Court in Mactan. Moreover, the parties in Mactan and in this case are
similarly situated, as can be obviously deducted from the fact that both petitioners are
airport authorities operating under similarly worded charters. And the fact that the majority
cites doctrines contrapuntal to the Local Government Code as in Basco and Maceda
evinces an intent to go against the Court's jurisprudential trend adopting the philosophy of
expanded local government rule under the Local Government Code.
Before I dwell upon the numerous flaws of the majority, a brief comment is necessitated on
the majority's studied murkiness vis-à-vis the Mactan precedent. The majority is obviously
inconsistent with Mactan and there is no way these two rulings can stand together.
Following basic principles in statutory construction, Mactan will be deemed as giving way to
this new ruling.
However, the majority does not bother to explain why Mactan is wrong. The interpretation in
Mactan of the relevant provisions of the Local Government Code is elegant and rational, yet
the majority refuses to explain why this reasoning of the Court in Mactan is erroneous. In
fact, the majority does not even engage Mactan in any meaningful way. If the majority
believes that Mactan may still stand despite this ruling, it remains silent as to the viable
distinctions between these two cases.
The majority's silence on Mactan is baffling, considering how different this new ruling is with
the ostensible precedent. Perhaps the majority does not simply know how to dispense with
the ruling in Mactan. If Mactan truly deserves to be discarded as precedent, it deserves a
more honorable end than death by amnesia or ignonominous disregard. The majority could
have devoted its discussion in explaining why it thinks Mactan is wrong, instead of
pretending that Mactan never existed at all. Such an approach might not have won the
votes of the minority, but at least it would provide some degree of intellectual clarity for the
parties, LGUs and the national government, students of jurisprudence and practitioners. A
more meaningful debate on the matter would have been possible, enriching the study of law
and the intellectual dynamic of this Court.
There is no way the majority can be justified unless Mactan is overturned. The MCIAA and
the MIAA are similarly situated. They are both, as will be demonstrated, GOCCs, commonly
engaged in the business of operating an airport. They are the owners of airport properties
they respectively maintain and hold title over these properties in their name. 53 These entities
are both owned by the State, and denied by their respective charters the absolute right to
dispose of their properties without prior approval elsewhere. 54 Both of them are
Josef Elvin Campos
not empowered to obtain loans or encumber their properties without prior approval the prior
approval of the President.55
III.
Instrumentalities, Agencies
And GOCCs Generally
Liable for Real Property Tax
I shall now proceed to demonstrate the errors in reasoning of the majority. A bulwark of my
position lies with Mactan, which will further demonstrate why the majority has found it
inconvenient to even grapple with the precedent that is Mactan in the first place.
Mactan held that the prohibition on taxing the national government, its agencies and
instrumentalities under Section 133 is qualified by Section 232 and Section 234, and
accordingly, the only relevant exemption now applicable to these bodies is as provided
under Section 234(o), or on "real property owned by the Republic of the Philippines or any
of its political subdivisions except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person."
It should be noted that the express withdrawal of previously granted exemptions by the
Local Government Code do not even make any distinction as to whether the exempt person
is a governmental entity or not. As Sections 193 and 234 both state, the withdrawal applies
to "all persons, including [GOCCs]", thus encompassing the two classes of persons
recognized under our laws, natural persons 56 and juridical persons.57
The fact that the Local Government Code mandates the withdrawal of previously granted
exemptions evinces certain key points. If an entity was previously granted an express
exemption from real property taxes in the first place, the obvious conclusion would be that
such entity would ordinarily be liable for such taxes without the exemption. If such entities
were already deemed exempt due to some overarching principle of law, then it would be a
redundancy or surplusage to grant an exemption to an already exempt entity. This fact
militates against the claim that MIAA is preternaturally exempt from realty taxes, since it
required the enactment of an express exemption from such taxes in its charter.
Amazingly, the majority all but ignores the disquisition in Mactan and asserts that
government instrumentalities are not taxable persons unless they lease their properties to a
taxable person. The general rule laid down in Section 232 is given short shrift. In arriving at
this conclusion, several leaps in reasoning are committed.
Majority's Flawed Definition
of GOCCs.
The majority takes pains to assert that the MIAA is not a GOCC, but rather an
instrumentality. However, and quite grievously, the supposed foundation of this assertion is
an adulteration.
The majority gives the impression that a government instrumentality is a distinct concept
from a government corporation.58 Most tellingly, the majority selectively cites a portion of
Section 2(10) of the Administrative Code of 1987, as follows:
Instrumentality refers to any agency of the National Government not integrated within the
department framework, vested with special functions or jurisdiction by law, endowed with
some if not all corporate powers, administering special funds, and enjoying operational
autonomy, usually through a charter. xxx 59 (emphasis omitted)
However, Section 2(10) of the Administrative Code, when read in full, makes an important
clarification which the majority does not show. The portions omitted by the majority are
highlighted below:
(10)Instrumentality refers to any agency of the National Government not integrated within
the department framework, vested with special functions or jurisdiction by law, endowed
with some if not all corporate powers, administering special funds, and enjoying operational
autonomy, usually through a charter. This term includes regulatory agencies, chartered
institutions and government—owned or controlled corporations. 60
Since Section 2(10) makes reference to "agency of the National Government," Section 2(4)
is also worth citing in full:
(4) Agency of the Government refers to any of the various units of the Government,
including a department, bureau, office, instrumentality, or government-owned or controlled
corporation, or a local government or a distinct unit therein. (emphasis supplied) 61
Clearly then, based on the Administrative Code, a GOCC may be an instrumentality or an
agency of the National Government. Thus, there actually is no point in the majority's
assertion that MIAA is not a GOCC, since based on the majority's premise of Section 133
as the key provision, the material question is whether MIAA is either an instrumentality, an
agency, or the National Government itself. The very provisions of the Administrative Code
Josef Elvin Campos
provide that a GOCC can be either an instrumentality or an agency, so why even bother to
extensively discuss whether or not MIAA is a GOCC?
Indeed as far back as the 1927 case of Government of the Philippine Islands v.
Springer,62 the Supreme Court already noted that a corporation of which the government is
the majority stockholder "remains an agency or instrumentality of government." 63
Ordinarily, the inconsequential verbiage stewing in judicial opinions deserve little rebuttal.
However, the entire discussion of the majority on the definition of a GOCC, obiter as it may
ultimately be, deserves emphatic refutation. The views of the majority on this matter are
very dangerous, and would lead to absurdities, perhaps unforeseen by the majority. For in
fact, the majority effectively declassifies many entities created and recognized as GOCCs
and would give primacy to the Administrative Code of 1987 rather than their respective
charters as to the definition of these entities.
Majority Ignores the Power
Of Congress to Legislate and
Define Chartered Corporations
First, the majority declares that, citing Section 2(13) of the Administrative Code, a GOCC
must be "organized as a stock or non-stock corporation," as defined under the Corporation
Code. To insist on this as an absolute rule fails on bare theory. Congress has the
undeniable power to create a corporation by legislative charter, and has been doing so
throughout legislative history. There is no constitutional prohibition on Congress as to what
structure these chartered corporations should take on. Clearly, Congress has the
prerogative to create a corporation in whatever form it chooses, and it is not bound by any
traditional format. Even if there is a definition of what a corporation is under the Corporation
Code or the Administrative Code, these laws are by no means sacrosanct. It should be
remembered that these two statutes fall within the same level of hierarchy as a
congressional charter, since they all are legislative enactments. Certainly, Congress can
choose to disregard either the Corporation Code or the Administrative Code in defining the
corporate structure of a GOCC, utilizing the same extent of legislative powers similarly
vesting it the putative ability to amend or abolish the Corporation Code or the Administrative
Code.
These principles are actually recognized by both the Administrative Code and the
Corporation Code. The definition of GOCCs, agencies and instrumentalities under the
Administrative Code are laid down in the section entitled "General Terms Defined," which
qualifies:
Sec. 2. General Terms Defined. – Unless the specific words of the text, or the context as a
whole, or a particular statute, shall require a different meaning: (emphasis supplied)
xxx
Similar in vein is Section 6 of the Corporation Code which provides:
SEC. 4. Corporations created by special laws or charters.— Corporations created by
special laws or charters shall be governed primarily by the provisions of the special law or
charter creating them or applicable to them, supplemented by the provisions of this Code,
insofar as they are applicable. (emphasis supplied)
Thus, the clear doctrine emerges – the law that governs the definition of a corporation or
entity created by Congress is its legislative charter. If the legislative enactment defines an
entity as a corporation, then it is a corporation, no matter if the Corporation Code or the
Administrative Code seemingly provides otherwise. In case of conflict between the
legislative charter of a government corporation, on one hand, and the Corporate Code and
the Administrative Code, on the other, the former always prevails.
Majority, in Ignoring the
Legislative Charters, Effectively
Classifies Duly Established GOCCs,
With Disastrous and Far Reaching
Legal Consequences
Second, the majority claims that MIAA does not qualify either as a stock or non-stock
corporation, as defined under the Corporation Code. It explains that the MIAA is not a stock
corporation because it does not have any capital stock divided into shares. Neither can it be
considered as a non-stock corporation because it has no members, and under Section 87, a
non-stock corporation is one where no part of its income is distributable as dividends to its
members, trustees or officers.
This formulation of course ignores Section 4 of the Corporation Code, which again provides
that corporations created by special laws or charters shall be governed primarily by the
provisions of the special law or charter, and not the Corporation Code.
Josef Elvin Campos
That the MIAA cannot be considered a stock corporation if only because it does not have a
stock structure is hardly a plausible proposition. Indeed, there is no point in requiring a
capital stock structure for GOCCs whose full ownership is limited by its charter to the State
or Republic. Such GOCCs are not empowered to declare dividends or alienate their capital
shares.
Admittedly, there are GOCCs established in such a manner, such as the National Power
Corporation (NPC), which is provided with authorized capital stock wholly subscribed and
paid for by the Government of the Philippines, divided into shares but at the same time, is
prohibited from transferring, negotiating, pledging, mortgaging or otherwise giving these
shares as security for payment of any obligation. 64 However, based on the Corporation
Code definition relied upon by the majority, even the NPC cannot be considered as a stock
corporation. Under Section 3 of the Corporation Code, stock corporations are defined as
being "authorized to distribute to the holders of its shares dividends or allotments of the
surplus profits on the basis of the shares held." 65 On the other hand, Section 13 of the
NPC's charter states that "the Corporation shall be non-profit and shall devote all its returns
from its capital investment, as well as excess revenues from its operation, for
expansion."66 Can the holder of the shares of NPC, the National Government, receive its
surplus profits on the basis of its shares held? It cannot, according to the NPC charter, and
hence, following Section 3 of the Corporation Code, the NPC is not a stock corporation, if
the majority is to be believed.
The majority likewise claims that corporations without members cannot be deemed non-
stock corporations. This would seemingly exclude entities such as the NPC, which like
MIAA, has no ostensible members. Moreover, non-stock corporations cannot distribute any
part of its income as dividends to its members, trustees or officers. The majority faults MIAA
for remitting 20% of its gross operating income to the national government. How about the
Philippine Health Insurance Corporation, created with the "status of a tax-exempt
government corporation attached to the Department of Health" under Rep. Act No. 7875. 67 It
too cannot be considered as a stock corporation because it has no capital stock structure.
But using the criteria of the majority, it is doubtful if it would pass muster as a non-stock
corporation, since the PHIC or Philhealth, as it is commonly known, is expressly
empowered "to collect, deposit, invest, administer and disburse" the National Health
Insurance Fund.68 Or how about the Social Security System, which under its revised
charter, Republic Act No. 8282, is denominated as a "corporate body." 69 The SSS has no
capital stock structure, but has capital comprised of contributions by its members, which are
eventually remitted back to its members. Does this disqualify the SSS from classification as
a GOCC, notwithstanding this Court's previous pronouncement in Social Security System
Employees Association v. Soriano?70
In fact, Republic Act No. 7656, enacted in 1993, requires that all GOCCs, whether stock or
non-stock,71 declare and remit at least fifty percent (50%) of their annual net earnings as
cash, stock or property dividends to the National Government. 72 But according to the
majority, non-stock corporations are prohibited from declaring any part of its income as
dividends. But if Republic Act No. 7656 requires even non-stock corporations to declare
dividends from income, should it not follow that the prohibition against declaration of
dividends by non-stock corporations under the Corporation Code does not apply to
government-owned or controlled corporations? For if not, and the majority's illogic is
pursued, Republic Act No. 7656, passed in 1993, would be fatally flawed, as it would
contravene the Administrative Code of 1987 and the Corporation Code.
In fact, the ruinous effects of the majority's hypothesis on the nature of GOCCs can be
illustrated by Republic Act No. 7656. Following the majority's definition of a GOCC and in
accordance with Republic Act No. 7656, here are but a few entities which are not obliged to
remit fifty (50%) of its annual net earnings to the National Government as they are excluded
from the scope of Republic Act No. 7656:
1) Philippine Ports Authority 73 – has no capital stock74, no members, and obliged to apply
the balance of its income or revenue at the end of each year in a general reserve. 75
2) Bases Conversion Development Authority76 - has no capital stock,77 no members.
3) Philippine Economic Zone Authority78 - no capital stock,79 no members.
4) Light Rail Transit Authority80 - no capital stock,81 no members.
5) Bangko Sentral ng Pilipinas 82 - no capital stock,83 no members, required to remit fifty
percent (50%) of its net profits to the National Treasury. 84
6) National Power Corporation85 - has capital stock but is prohibited from "distributing to the
holders of its shares dividends or allotments of the surplus profits on the basis of the shares
held;"86 no members.
Josef Elvin Campos
7) Manila International Airport Authority – no capital stock 87, no members88, mandated to
remit twenty percent (20%) of its annual gross operating income to the National Treasury. 89
Thus, for the majority, the MIAA, among many others, cannot be considered as within the
coverage of Republic Act No. 7656. Apparently, President Fidel V. Ramos disagreed. How
else then could Executive Order No. 483, signed in 1998 by President Ramos, be
explained? The issuance provides:
WHEREAS, Section 1 of Republic Act No. 7656 provides that:
"Section 1. Declaration of Policy. - It is hereby declared the policy of the State that in order
for the National Government to realize additional revenues, government-owned and/or
controlled corporations, without impairing their viability and the purposes for which they
have been established, shall share a substantial amount of their net earnings to the
National Government."
WHEREAS, to support the viability and mandate of government-owned and/or controlled
corporations [GOCCs], the liquidity, retained earnings position and medium-term plans and
programs of these GOCCs were considered in the determination of the reasonable dividend
rates of such corporations on their 1997 net earnings.
WHEREAS, pursuant to Section 5 of RA 7656, the Secretary of Finance recommended the
adjustment on the percentage of annual net earnings that shall be declared by the Manila
International Airport Authority [MIAA] and Phividec Industrial Authority [PIA] in the interest of
national economy and general welfare.
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines, by virtue of the
powers vested in me by law, do hereby order:
SECTION 1. The percentage of net earnings to be declared and remitted by the MIAA and
PIA as dividends to the National Government as provided for under Section 3 of Republic
Act No. 7656 is adjusted from at least fifty percent [50%] to the rates specified hereunder:
1. Manila International Airport Authority - 35% [cash]
2. Phividec Industrial Authority - 25% [cash]
SECTION 2. The adjusted dividend rates provided for under Section 1 are only applicable
on 1997 net earnings of the concerned government-owned and/or controlled corporations.
Obviously, it was the opinion of President Ramos and the Secretary of Finance that MIAA is
a GOCC, for how else could it have come under the coverage of Republic Act No. 7656, a
law applicable only to GOCCs? But, the majority apparently disagrees, and resultantly holds
that MIAA is not obliged to remit even the reduced rate of thirty five percent (35%) of its net
earnings to the national government, since it cannot be covered by Republic Act No. 7656.
All this mischief because the majority would declare the Administrative Code of 1987 and
the Corporation Code as the sole sources of law defining what a government corporation is.
As I stated earlier, I find it illogical that chartered corporations are compelled to comply with
the templates of the Corporation Code, especially when the Corporation Code itself states
that these corporations are to be governed by their own charters. This is especially true
considering that the very provision cited by the majority, Section 87 of the Corporation
Code, expressly says that the definition provided therein is laid down "for the purposes of
this [Corporation] Code." Read in conjunction with Section 4 of the Corporation Code which
mandates that corporations created by charter be governed by the law creating them, it is
clear that contrary to the majority, MIAA is not disqualified from classification as a non-stock
corporation by reason of Section 87, the provision not being applicable to corporations
created by special laws or charters. In fact, I see no real impediment why the MIAA and
similarly situated corporations such as the PHIC, the SSS, the Philippine Deposit Insurance
Commission, or maybe even the NPC could at the very least, be deemed as no stock
corporations (as differentiated from non-stock corporations).
The point, stripped to bare simplicity, is that entity created by legislative enactment is a
corporation if the legislature says so. After all, it is the legislature that dictates what a
corporation is in the first place. This is better illustrated by another set of entities created
before martial law. These include the Mindanao Development Authority, 90 the Northern
Samar Development Authority,91 the Ilocos Sur Development Authority,92 the Southeastern
Samar Development Authority93 and the Mountain Province Development Authority. 94 An
examination of the first section of the statutes creating these entities reveal that they were
established "to foster accelerated and balanced growth" of their respective regions, and
towards such end, the charters commonly provide that "it is recognized that a government
corporation should be created for the purpose," and accordingly, these charters "hereby
created a body corporate."95 However, these corporations do not have capital stock nor
members, and are obliged to return the unexpended balances of their appropriations and
earnings to a revolving fund in the National Treasury. The majority effectively declassifies
Josef Elvin Campos
these entities as GOCCs, never mind the fact that their very charters declare them to be
GOCCs.
I mention these entities not to bring an element of obscurantism into the fray. I cite them as
examples to emphasize my fundamental point—that it is the legislative charters of these
entities, and not the Administrative Code, which define the class of personality of these
entities created by Congress. To adopt the view of the majority would be, in effect, to
sanction an implied repeal of numerous congressional charters for the purpose of
declassifying GOCCs. Certainly, this could not have been the intent of the crafters of the
Administrative Code when they drafted the "Definition of Terms" incorporated therein.
MIAA Is Without
Doubt, A GOCC
Following the charters of government corporations, there are two kinds of GOCCs, namely:
GOCCs which are stock corporations and GOCCs which are no stock corporations (as
distinguished from non-stock corporation). Stock GOCCs are simply those which have
capital stock while no stock GOCCs are those which have no capital stock. Obviously these
definitions are different from the definitions of the terms in the Corporation Code. Verily,
GOCCs which are not incorporated with the Securities and Exchange Commission are not
governed by the Corporation Code but by their respective charters.
For the MIAA's part, its charter is replete with provisions that indubitably classify it as a
GOCC. Observe the following provisions from MIAA's charter:
SECTION 3. Creation of the Manila International Airport Authority.—There is hereby
established a body corporate to be known as the Manila International Airport Authority
which shall be attached to the Ministry of Transportation and Communications. The principal
office of the Authority shall be located at the New Manila International Airport. The Authority
may establish such offices, branches, agencies or subsidiaries as it may deem proper and
necessary; Provided, That any subsidiary that may be organized shall have the prior
approval of the President.
The land where the Airport is presently located as well as the surrounding land area of
approximately six hundred hectares, are hereby transferred, conveyed and assigned to the
ownership and administration of the Authority, subject to existing rights, if any. The Bureau
of Lands and other appropriate government agencies shall undertake an actual survey of
the area transferred within one year from the promulgation of this Executive Order and the
corresponding title to be issued in the name of the Authority. Any portion thereof shall not
be disposed through sale or through any other mode unless specifically approved by the
President of the Philippines.
xxx
SECTION 5. Functions, Powers, and Duties. — The Authority shall have the following
functions, powers and duties:
xxx
(d) To sue and be sued in its corporate name;
(e) To adopt and use a corporate seal;
(f) To succeed by its corporate name;
(g) To adopt its by-laws, and to amend or repeal the same from time to time;
(h) To execute or enter into contracts of any kind or nature;
(i) To acquire, purchase, own, administer, lease, mortgage, sell or otherwise dispose of any
land, building, airport facility, or property of whatever kind and nature, whether movable or
immovable, or any interest therein;
(j) To exercise the power of eminent domain in the pursuit of its purposes and objectives;
xxx
(o) To exercise all the powers of a corporation under the Corporation Law, insofar as these
powers are not inconsistent with the provisions of this Executive Order.
xxx
SECTION 16. Borrowing Power. — The Authority may, after consultation with the Minister
of Finance and with the approval of the President of the Philippines, as recommended by
the Minister of Transportation and Communications, raise funds, either from local or
international sources, by way of loans, credits or securities, and other borrowing
instruments, with the power to create pledges, mortgages and other voluntary liens or
encumbrances on any of its assets or properties.
All loans contracted by the Authority under this Section, together with all interests and other
sums payable in respect thereof, shall constitute a charge upon all the revenues and assets
of the Authority and shall rank equally with one another, but shall have priority over any
other claim or charge on the revenue and assets of the Authority: Provided, That this
provision shall not be construed as a prohibition or restriction on the power of the Authority
Josef Elvin Campos
to create pledges, mortgages, and other voluntary liens or encumbrances on any assets or
property of the Authority.
Except as expressly authorized by the President of the Philippines the total outstanding
indebtedness of the Authority in the principal amount, in local and foreign currency, shall not
at any time exceed the net worth of the Authority at any given time.
xxx
The President or his duly authorized representative after consultation with the Minister of
Finance may guarantee, in the name and on behalf of the Republic of the Philippines, the
payment of the loans or other indebtedness of the Authority up to the amount herein
authorized.
These cited provisions establish the fitness of MIAA to be the subject of legal
relations.96 MIAA under its charter may acquire and possess property, incur obligations, and
bring civil or criminal actions. It has the power to contract in its own name, and to acquire
title to real or personal property. It likewise may exercise a panoply of corporate powers and
possesses all the trappings of corporate personality, such as a corporate name, a corporate
seal and by-laws. All these are contained in MIAA's charter which, as conceded by the
Corporation Code and even the Administrative Code, is the primary law that governs the
definition and organization of the MIAA.
In fact, MIAA itself believes that it is a GOCC represents itself as such. It said so itself in the
very first paragraph of the present petition before this Court. 97 So does, apparently, the
Department of Budget and Management, which classifies MIAA as a "government owned &
controlled corporation" on its internet website. 98 There is also the matter of Executive Order
No. 483, which evinces the belief of the then-president of the Philippines that MIAA is a
GOCC. And the Court before had similarly characterized MIAA as a government-owned and
controlled corporation in the earlier MIAA case, Manila International Airport Authority v.
Commission on Audit.99
Why then the hesitance to declare MIAA a GOCC? As the majority repeatedly asserts, it is
because MIAA is actually an instrumentality. But the very definition relied upon by the
majority of an instrumentality under the Administrative Code clearly states that a GOCC is
likewise an instrumentality or an agency. The question of whether MIAA is a GOCC might
not even be determinative of this Petition, but the effect of the majority's disquisition on that
matter may even be more destructive than the ruling that MIAA is exempt from realty taxes.
Is the majority ready to live up to the momentous consequences of its flawed reasoning?
Novel Proviso in 1987 Constitution
Prescribing Standards in the
Creation of GOCCs Necessarily
Applies only to GOCCs Created
After 1987.
One last point on this matter on whether MIAA is a GOCC. The majority triumphantly points
to Section 16, Article XII of the 1987 Constitution, which mandates that the creation of
GOCCs through special charters be "in the interest of the common good and subject to the
test of economic viability." For the majority, the test of economic viability does not apply to
government entities vested with corporate powers and performing essential public services.
But this test of "economic viability" is new to the constitutional framework. No such test was
imposed in previous Constitutions, including the 1973 Constitution which was the
fundamental law in force when the MIAA was created. How then could the MIAA, or any
GOCC created before 1987 be expected to meet this new precondition to the creation of a
GOCC? Does the dissent seriously suggest that GOCCs created before 1987 may be
declassified on account of their failure to meet this "economic viability test"?
Instrumentalities and Agencies
Also Generally Liable For
Real Property Taxes
Next, the majority, having bludgeoned its way into asserting that MIAA is not a GOCC, then
argues that MIAA is an instrumentality. It cites incompletely, as earlier stated, the provision
of Section 2(10) of the Administrative Code. A more convincing view offered during
deliberations, but which was not adopted by the ponencia, argued that MIAA is not an
instrumentality but an agency, considering the fact that under the Administrative Code, the
MIAA is attached within the department framework of the Department of Transportation and
Communications.100 Interestingly, Executive Order No. 341, enacted by President Arroyo in
2004, similarly calls MIAA an agency. Since instrumentalities are expressly defined as "an
agency not integrated within the department framework," that view concluded that MIAA
cannot be deemed an instrumentality.
Josef Elvin Campos
Still, that distinction is ultimately irrelevant. Of course, as stated earlier, the Administrative
Code considers GOCCs as agencies,101 so the fact that MIAA is an agency does not
exclude it from classification as a GOCC. On the other hand, the majority justifies MIAA's
purported exemption on Section 133 of the Local Government Code, which similarly
situates "agencies and instrumentalities" as generally exempt from the taxation powers of
LGUs. And on this point, the majority again evades Mactan and somehow concludes that
Section 133 is the general rule, notwithstanding Sections 232 and 234(a) of the Local
Government Code. And the majority's ultimate conclusion? "By express mandate of the
Local Government Code, local governments cannot impose any kind of tax on national
government instrumentalities like the MIAA. Local governments are devoid of power to tax
the national government, its agencies and instrumentalities." 102
The Court's interpretation of the Local Government Code in Mactan renders the law
integrally harmonious and gives due accord to the respective prerogatives of the national
government and LGUs. Sections 133 and 234(a) ensure that the Republic of the Philippines
or its political subdivisions shall not be subjected to any form of local government taxation,
except realty taxes if the beneficial use of the property owned has been granted for
consideration to a taxable entity or person. On the other hand, Section 133 likewise assures
that government instrumentalities such as GOCCs may not be arbitrarily taxed by LGUs,
since they could be subjected to local taxation if there is a specific proviso thereon in the
Code. One such proviso is Section 137, which as the Court found in National Power
Corporation,103 permits the imposition of a franchise tax on businesses enjoying a franchise,
even if it be a GOCC such as NPC. And, as the Court acknowledged in Mactan, Section
232 provides another exception on the taxability of instrumentalities.
The majority abjectly refuses to engage Section 232 of the Local Government Code
although it provides the indubitable general rule that LGUs "may levy an annual ad valorem
tax on real property such as land, building, machinery, and other improvements not
hereafter specifically exempted." The specific exemptions are provided by Section 234.
Section 232 comes sequentially after Section 133(o), 104 and even if the sequencing is
irrelevant, Section 232 would fall under the qualifying phrase of Section 133, "Unless
otherwise provided herein." It is sad, but not surprising that the majority is not willing to
consider or even discuss the general rule, but only the exemptions under Section 133 and
Section 234. After all, if the majority is dead set in ruling for MIAA no matter what the law
says, why bother citing what the law does say.
Constitution, Laws and
Jurisprudence Have Long
Explained the Rationale
Behind the Local Taxation
Of GOCCs.
This blithe disregard of precedents, almost all of them unanimously decided, is nowhere
more evident than in the succeeding discussion of the majority, which asserts that the
power of local governments to tax national government instrumentalities be construed
strictly against local governments. The Maceda case, decided before the Local Government
Code, is cited, as is Basco. This section of the majority employs deliberate pretense that the
Code never existed, or that the fundamentals of local autonomy are of limited effect in our
country. Why is it that the Local Government Code is barely mentioned in this section of the
majority? Because Section 5 of the Code, purposely omitted by the majority provides for a
different rule of interpretation than that asserted:
Section 5. Rules of Interpretation. – In the interpretation of the provisions of this Code, the
following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted in its
favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit. Any fair and reasonable doubt as to the
existence of the power shall be interpreted in favor of the local government unit concerned;
(b) In case of doubt, any tax ordinance or revenue measure shall be construed strictly
against the local government unit enacting it, and liberally in favor of the taxpayer. Any tax
exemption, incentive or relief granted by any local government unit pursuant to the
provisions of this Code shall be construed strictly against the person claiming it; xxx
Yet the majority insists that "there is no point in national and local governments taxing each
other, unless a sound and compelling policy requires such transfer of public funds from one
government pocket to another." 105 I wonder whether the Constitution satisfies the majority's
desire for "a sound and compelling policy." To repeat:
Article II. Declaration of Principles and State Policies
xxx
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Article X. Local Government
xxx
xxx
Section 5. Each local government unit shall have the power to create its own sources of
Or how about the Local Government Code, presumably an expression of sound and
compelling policy considering that it was enacted by the legislature, that veritable source of
all statutes:
SEC. 129. Power to Create Sources of Revenue. - Each local government unit shall
exercise its power to create its own sources of revenue and to levy taxes, fees, and charges
subject to the provisions herein, consistent with the basic policy of local autonomy. Such
taxes, fees, and charges shall accrue exclusively to the local government units.
Justice Puno, in National Power Corporation v. City of Cabanatuan, 106 provides a more
"sound and compelling policy considerations" that would warrant sustaining the taxability of
government-owned entities by local government units under the Local Government Code.
Doubtless, the power to tax is the most effective instrument to raise needed revenues to
finance and support myriad activities of the local government units for the delivery of basic
services essential to the promotion of the general welfare and the enhancement of peace,
progress, and prosperity of the people. As this Court observed in the Mactan case, "the
original reasons for the withdrawal of tax exemption privileges granted to government-
owned or controlled corporations and all other units of government were that such privilege
resulted in serious tax base erosion and distortions in the tax treatment of similarly situated
enterprises." With the added burden of devolution, it is even more imperative for
government entities to share in the requirements of development, fiscal or otherwise, by
paying taxes or other charges due from them. 107
I dare not improve on Justice Puno's exhaustive disquisition on the statutory and
jurisprudential shift brought about the acceptance of the principles of local autonomy:
In recent years, the increasing social challenges of the times expanded the scope of state
activity, and taxation has become a tool to realize social justice and the equitable
distribution of wealth, economic progress and the protection of local industries as well as
public welfare and similar objectives. Taxation assumes even greater significance with the
ratification of the 1987 Constitution. Thenceforth, the power to tax is no longer vested
exclusively on Congress; local legislative bodies are now given direct authority to levy
taxes, fees and other charges pursuant to Article X, section 5 of the 1987 Constitution, viz:
"Section 5. Each Local Government unit shall have the power to create its own sources of
revenue, to levy taxes, fees and charges subject to such guidelines and limitations as the
Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees
and charges shall accrue exclusively to the Local Governments."
This paradigm shift results from the realization that genuine development can be achieved
only by strengthening local autonomy and promoting decentralization of governance. For a
long time, the country's highly centralized government structure has bred a culture of
dependence among local government leaders upon the national leadership. It has also
"dampened the spirit of initiative, innovation and imaginative resilience in matters of local
development on the part of local government leaders." 35 The only way to shatter this
culture of dependence is to give the LGUs a wider role in the delivery of basic services, and
confer them sufficient powers to generate their own sources for the purpose. To achieve
this goal, section 3 of Article X of the 1987 Constitution mandates Congress to enact a local
government code that will, consistent with the basic policy of local autonomy, set the
guidelines and limitations to this grant of taxing powers, viz:
"Section 3. The Congress shall enact a local government code which shall provide for a
and operation of the local units."
To recall, prior to the enactment of the Rep. Act No. 7160, also known as the Local
Government Code of 1991 (LGC), various measures have been enacted to promote local
autonomy. These include the Barrio Charter of 1959, the Local Autonomy Act of 1959, the
Josef Elvin Campos
Decentralization Act of 1967 and the Local Government Code of 1983. Despite these
initiatives, however, the shackles of dependence on the national government remained.
Local government units were faced with the same problems that hamper their capabilities to
participate effectively in the national development efforts, among which are: (a) inadequate
tax base, (b) lack of fiscal control over external sources of income, (c) limited authority to
prioritize and approve development projects, (d) heavy dependence on external sources of
income, and (e) limited supervisory control over personnel of national line agencies.
Considered as the most revolutionary piece of legislation on local autonomy, the LGC
effectively deals with the fiscal constraints faced by LGUs. It widens the tax base of LGUs to
include taxes which were prohibited by previous laws such as the imposition of taxes on
forest products, forest concessionaires, mineral products, mining operations, and the like.
The LGC likewise provides enough flexibility to impose tax rates in accordance with their
needs and capabilities. It does not prescribe graduated fixed rates but merely specifies the
minimum and maximum tax rates and leaves the determination of the actual rates to the
respective sanggunian.108
And the Court's ruling through Justice Azcuna in Philippine Ports Authority v. City of Iloilo 109,
provides especially clear and emphatic rationale:
In closing, we reiterate that in taxing government-owned or controlled corporations, the
State ultimately suffers no loss. In National Power Corp. v. Presiding Judge, RTC, Br. XXV,
38 we elucidated:
Actually, the State has no reason to decry the taxation of NPC's properties, as and by way
of real property taxes. Real property taxes, after all, form part and parcel of the financing
apparatus of the Government in development and nation-building, particularly in the local
government level.
xxxxxxxxx
To all intents and purposes, real property taxes are funds taken by the State with one hand
and given to the other. In no measure can the government be said to have lost anything.
Finally, we find it appropriate to restate that the primary reason for the withdrawal of tax
exemption privileges granted to government-owned and controlled corporations and all
other units of government was that such privilege resulted in serious tax base erosion and
distortions in the tax treatment of similarly situated enterprises, hence resulting in the need
for these entities to share in the requirements of development, fiscal or otherwise, by paying
the taxes and other charges due from them. 110
How does the majority counter these seemingly valid rationales which establish the
soundness of a policy consideration subjecting national instrumentalities to local taxation?
Again, by simply ignoring that these doctrines exist. It is unfortunate if the majority deems
these cases or the principles of devolution and local autonomy as simply too inconvenient,
and relies instead on discredited precedents. Of course, if the majority faces the issues
squarely, and expressly discusses why Basco was right and Mactan was wrong, then this
entire endeavor of the Court would be more intellectually satisfying. But, this is not a game
the majority wants to play.
Mischaracterization of My
Views on the Tax Exemption
Enjoyed by the National Government
Instead, the majority engages in an extended attack pertaining to Section 193,
mischaracterizing my views on that provision as if I had been interpreting the provision as
making "the national government, which itself is a juridical person, subject to tax by local
governments since the national government is not included in the enumeration of exempt
entities in Section 193."111
Nothing is farther from the truth. I have never advanced any theory of the sort imputed in
the majority. My main thesis on the matter merely echoes the explicit provision of Section
193 that unless otherwise provided in the Local Government Code (LGC) all tax exemptions
enjoyed by all persons, whether natural or juridical, including GOCCs, were withdrawn upon
the effectivity of the Code. Since the provision speaks of withdrawal of tax exemptions of
persons, it follows that the exemptions theretofore enjoyed by MIAA which is definitely a
person are deemed withdrawn upon the advent of the Code.
On the other hand, the provision does not address the question of who are beyond the
reach of the taxing power of LGUs. In fine, the grant of tax exemption or the withdrawal
thereof assumes that the person or entity involved is subject to tax. Thus, Section 193 does
not apply to entities which were never given any tax exemption. This would include the
national government and its political subdivisions which, as a general rule, are not subjected
to tax in the first place.112 Corollarily, the national government and its political subdivisions
Josef Elvin Campos
do not need tax exemptions. And Section 193 which ordains the withdrawal of tax
exemptions is obviously irrelevant to them.
Section 193 is in point for the disposition of this case as it forecloses dependence for the
grant of tax exemption to MIAA on Section 21 of its charter. Even the majority should
concede that the charter section is now ineffectual, as Section 193 withdraws the tax
exemptions previously enjoyed by all juridical persons.
With Section 193 mandating the withdrawal of tax exemptions granted to all persons upon
the effectivity of the LGC, for MIAA to continue enjoying exemption from realty tax, it will
have to rely on a basis other than Section 21 of its charter.
Lung Center of the Philippines v. Quezon City 113 provides another illustrative example of the
jurisprudential havoc wrought about by the majority. Pursuant to its charter, the Lung Center
was organized as a trust administered by an eponymous GOCC organized with the
SEC.114 There is no doubt it is a GOCC, even by the majority's reckoning. Applying the
Administrative Code, it is also considered as an agency, the term encompassing even
GOCCs. Yet since the Administrative Code definition of "instrumentalities" encompasses
agencies, especially those not attached to a line department such as the Lung Center, it
also follows that the Lung Center is an instrumentality, which for the majority is exempt from
all local government taxes, especially real estate taxes. Yet just in 2004, the Court
unanimously held that the Lung Center was not exempt from real property taxes. Can the
majority and Lung Center be reconciled? I do not see how, and no attempt is made to
demonstrate otherwise.
Another key point. The last paragraph of Section 234 specifically asserts that any previous
exemptions from realty taxes granted to or enjoyed by all persons, including all GOCCs, are
thereby withdrawn. The majority's interpretation of Sections 133 and 234(a) however
necessarily implies that all instrumentalities, including GOCCs, can never be subjected to
real property taxation under the Code. If that is so, what then is the sense of the last
paragraph specifically withdrawing previous tax exemptions to all persons, including
GOCCs when juridical persons such as MIAA are anyway, to his view, already exempt from
such taxes under Section 133? The majority's interpretation would effectively render the
express and emphatic withdrawal of previous exemptions to GOCCs inutile. Ut magis valeat
quam pereat. Hence, where a statute is susceptible of more than one interpretation, the
court should adopt such reasonable and beneficial construction which will render the
provision thereof operative and effective, as well as harmonious with each other. 115
But, the majority seems content rendering as absurd the Local Government Code, since it
does not have much use anyway for the Code's general philosophy of fiscal autonomy, as
evidently seen by the continued reliance on Basco or Maceda. Local government rule has
never been a grant of emancipation from the national government. This is the favorite
bugaboo of the opponents of local autonomy—the fallacy that autonomy equates to
independence.
Thus, the conclusion of the majority is that under Section 133(o), MIAA as a government
instrumentality is beyond the reach of local taxation because it is not subject to taxes, fees
or charges of any kind. Moreover, the taxation of national instrumentalities and agencies by
LGUs should be strictly construed against the LGUs, citing Maceda and Basco. No mention
is made of the subsequent rejection of these cases in jurisprudence following the Local
Government Code, including Mactan. The majority is similarly silent on the general rule
under Section 232 on real property taxation or Section 5 on the rules of construction of the
Local Government Code.
V.
MIAA, and not the National Government
Is the Owner of the Subject Taxable Properties
Section 232 of the Local Government Code explicitly provides that there are exceptions to
the general rule on rule property taxation, as "hereafter specifically exempted." Section 234,
certainly "hereafter," provides indubitable basis for exempting entities from real property
taxation. It provides the most viable legal support for any claim that an governmental entity
such as the MIAA is exempt from real property taxes. To repeat:
SECTION 234. Exemptions from Real Property Tax. -- The following are exempted from
xxx
(f) Real property owned by the Republic of the Philippines or any of its political subdivisions
except when the beneficial use thereof has been granted, for consideration or otherwise, to
a taxable person:
Josef Elvin Campos
The majority asserts that the properties owned by MIAA are owned by the Republic of the
Philippines, thus placing them under the exemption under Section 234. To arrive at this
conclusion, the majority employs four main arguments.
MIAA Property Is Patrimonial
And Not Part of Public Dominion
The majority claims that the Airport Lands and Buildings are property of public dominion as
defined by the Civil Code, and therefore owned by the State or the Republic of the
Philippines. But as pointed out by Justice Azcuna in the first PPA case, if indeed a property
is considered part of the public dominion, such property is "owned by the general public and
cannot be declared to be owned by a public corporation, such as [the PPA]."
Relevant on this point are the following provisions of the MIAA charter:
Section 3. Creation of the Manila International Airport Authority. – xxx
The land where the Airport is presently located as well as the surrounding land area of
approximately six hundred hectares, are hereby transferred, conveyed and assigned to the
ownership and administration of the Authority, subject to existing rights, if any. xxx Any
portion thereof shall not be disposed through sale or through any other mode unless
specifically approved by the President of the Philippines.
Section 22. Transfer of Existing Facilities and Intangible Assets. – All existing public airport
facilities, runways, lands, buildings and other property, movable or immovable, belonging to
the Airport, and all assets, powers rights, interests and privileges belonging to the Bureau of
Air Transportation relating to airport works or air operations, including all equipment which
are necessary for the operation of crash fire and rescue facilities, are hereby transferred to
the Authority.
Clearly, it is the MIAA, and not either the State, the Republic of the Philippines or the
national government that asserts legal title over the Airport Lands and Buildings. There was
an express transfer of ownership between the MIAA and the national government. If the
distinction is to be blurred, as the majority does, between the State/Republic/Government
and a body corporate such as the MIAA, then the MIAA charter showcases the remarkable
absurdity of an entity transferring property to itself.
Nothing in the Civil Code or the Constitution prohibits the State from transferring ownership
over property of public dominion to an entity that it similarly owns. It is just like a family
transferring ownership over the properties its members own into a family corporation. The
family exercises effective control over the administration and disposition of these properties.
Yet for several purposes under the law, such as taxation, it is the corporation that is
deemed to own those properties. A similar situation obtains with MIAA, the State, and the
Airport Lands and Buildings.
The second Public Ports Authority case, penned by Justice Callejo, likewise lays down
useful doctrines in this regard. The Court refuted the claim that the properties of the PPA
were owned by the Republic of the Philippines, noting that PPA's charter expressly
transferred ownership over these properties to the PPA, a situation which similarly obtains
with MIAA. The Court even went as far as saying that the fact that the PPA "had not been
issued any torrens title over the port and port facilities and appurtenances is of no legal
consequence. A torrens title does not, by itself, vest ownership; it is merely an evidence of
title over properties. xxx It has never been recognized as a mode of acquiring ownership
over real properties."116
The Court further added:
xxx The bare fact that the port and its facilities and appurtenances are accessible to the
general public does not exempt it from the payment of real property taxes. It must be
stressed that the said port facilities and appurtenances are the petitioner's corporate
patrimonial properties, not for public use, and that the operation of the port and its facilities
and the administration of its buildings are in the nature of ordinary business. The petitioner
is clothed, under P.D. No. 857, with corporate status and corporate powers in the
furtherance of its proprietary interests xxx The petitioner is even empowered to invest its
funds in such government securities approved by the Board of Directors, and derives its
income from rates, charges or fees for the use by vessels of the port premises, appliances
or equipment. xxx Clearly then, the petitioner is a profit-earning corporation; hence, its
patrimonial properties are subject to tax. 117
There is no doubt that the properties of the MIAA, as with the PPA, are in a sense, for public
use. A similar argument was propounded by the Light Rail Transit Authority in Light Rail
Transit Authority v. Central Board of Assessment, 118 which was cited in Philippine Ports
Authority and deserves renewed emphasis. The Light Rail Transit Authority (LRTA), a body
corporate, "provides valuable transportation facilities to the paying public." 119 It claimed that
its carriage-ways and terminal stations are immovably attached to government-owned
Josef Elvin Campos
national roads, and to impose real property taxes thereupon would be to impose taxes on
public roads. This view did not persuade the Court, whose decision was penned by Justice
(now Chief Justice) Panganiban. It was noted:
Though the creation of the LRTA was impelled by public service — to provide mass
transportation to alleviate the traffic and transportation situation in Metro Manila — its
operation undeniably partakes of ordinary business. Petitioner is clothed with corporate
status and corporate powers in the furtherance of its proprietary objectives. Indeed, it
operates much like any private corporation engaged in the mass transport industry. Given
that it is engaged in a service-oriented commercial endeavor, its carriageways and terminal
stations are patrimonial property subject to tax, notwithstanding its claim of being a
government-owned or controlled corporation.
xxx
Petitioner argues that it merely operates and maintains the LRT system, and that the actual
users of the carriageways and terminal stations are the commuting public. It adds that the
public use character of the LRT is not negated by the fact that revenue is obtained from the
latter's operations.
We do not agree. Unlike public roads which are open for use by everyone, the LRT is
accessible only to those who pay the required fare. It is thus apparent that petitioner does
not exist solely for public service, and that the LRT carriageways and terminal stations are
not exclusively for public use. Although petitioner is a public utility, it is nonetheless profit-
earning. It actually uses those carriageways and terminal stations in its public utility
business and earns money therefrom.120
xxx
Even granting that the national government indeed owns the carriageways and terminal
stations, the exemption would not apply because their beneficial use has been granted to
petitioner, a taxable entity.121
There is no substantial distinction between the properties held by the PPA, the LRTA, and
the MIAA. These three entities are in the business of operating facilities that promote public
transportation.
The majority further asserts that MIAA's properties, being part of the public dominion, are
outside the commerce of man. But if this is so, then why does Section 3 of MIAA's charter
authorize the President of the Philippines to approve the sale of any of these properties? In
fact, why does MIAA's charter in the first place authorize the transfer of these airport
properties, assuming that indeed these are beyond the commerce of man?
No Trust Has Been Created
Over MIAA Properties For
The Benefit of the Republic
The majority posits that while MIAA might be holding title over the Airport Lands and
Buildings, it is holding it in trust for the Republic. A provision of the Administrative Code is
cited, but said provision does not expressly provide that the property is held in trust. Trusts
are either express or implied, and only those situations enumerated under the Civil Code
would constitute an implied trust. MIAA does not fall within this enumeration, and neither is
there a provision in MIAA's charter expressly stating that these properties are being held in
trust. In fact, under its charter, MIAA is obligated to retain up to eighty percent (80%) of its
gross operating income, not an inconsequential sum assuming that the beneficial owner of
MIAA's properties is actually the Republic, and not the MIAA.
Also, the claim that beneficial ownership over the MIAA remains with the government and
not MIAA is ultimately irrelevant. Section 234(a) of the Local Government Code provides
among those exempted from paying real property taxes are "[r]eal property owned by the
[Republic]… except when the beneficial use thereof has been granted, for consideration or
otherwise, to a taxable person." In the context of Section 234(a), the identity of the
beneficial owner over the properties is not determinative as to whether the exemption
avails. It is the identity of the beneficial user of the property owned by the Republic or its
political subdivisions that is crucial, for if said beneficial user is a taxable person, then the
exemption does not lie.
I fear the majority confuses the notion of what might be construed as "beneficial ownership"
of the Republic over the properties of MIAA as nothing more than what arises as a
consequence of the fact that the capital of MIAA is contributed by the National
Government.122 If so, then there is no difference between the State's ownership rights over
MIAA properties than those of a majority stockholder over the properties of a corporation.
Even if such shareholder effectively owns the corporation and controls the disposition of its
assets, the personality of the stockholder remains separately distinct from that of the
corporation. A brief recall of the entrenched rule in corporate law is in order:
Josef Elvin Campos
The first consequence of the doctrine of legal entity regarding the separate identity of the
corporation and its stockholders insofar as their obligations and liabilities are concerned, is
spelled out in this general rule deeply entrenched in American jurisprudence:
Unless the liability is expressly imposed by constitutional or statutory provisions, or by the
charter, or by special agreement of the stockholders, stockholders are not personally liable
for debts of the corporation either at law or equity. The reason is that the corporation is a
legal entity or artificial person, distinct from the members who compose it, in their individual
capacity; and when it contracts a debt, it is the debt of the legal entity or artificial person –
the corporation – and not the debt of the individual members. (13A Fletcher Cyc. Corp. Sec.
6213)
The entirely separate identity of the rights and remedies of a corporation itself and its
individual stockholders have been given definite recognition for a long time. Applying said
principle, the Supreme Court declared that a corporation may not be made to answer for
acts or liabilities of its stockholders or those of legal entities to which it may be connected,
or vice versa. (Palay Inc. v. Clave et. al. 124 SCRA 638) It was likewise declared in a similar
case that a bonafide corporation should alone be liable for corporate acts duly authorized by
its officers and directors. (Caram Jr. v. Court of Appeals et.al. 151 SCRA, p. 372) 123
It bears repeating that MIAA under its charter, is expressly conferred the right to exercise all
the powers of a corporation under the Corporation Law, including the right to corporate
succession, and the right to sue and be sued in its corporate name. 124 The national
government made a particular choice to divest ownership and operation of the Manila
International Airport and transfer the same to such an empowered entity due to perceived
advantages. Yet such transfer cannot be deemed consequence free merely because it was
the State which contributed the operating capital of this body corporate.
The majority claims that the transfer the assets of MIAA was meant merely to effect a
reorganization. The imputed rationale for such transfer does not serve to militate against the
legal consequences of such assignment. Certainly, if it was intended that the transfer
should be free of consequence, then why was it effected to a body corporate, with a distinct
legal personality from that of the State or Republic? The stated aims of the MIAA could
have very well been accomplished by creating an agency without independent juridical
personality.
VI.
MIAA Performs Proprietary Functions
Nonetheless, Section 234(f) exempts properties owned by the Republic of the Philippines or
its political subdivisions from realty taxation. The obvious question is what comprises "the
Republic of the Philippines." I think the key to understanding the scope of "the Republic" is
the phrase "political subdivisions." Under the Constitution, political subdivisions are defined
as "the provinces, cities, municipalities and barangays." 125 In correlation, the Administrative
Code of 1987 defines "local government" as referring to "the political subdivisions
established by or in accordance with the Constitution."
Clearly then, these political subdivisions are engaged in the exercise of sovereign functions
and are accordingly exempt. The same could be said generally of the national government,
which would be similarly exempt. After all, even with the principle of local autonomy, it is
inherently noxious and self-defeatist for local taxation to interfere with the sovereign
exercise of functions. However, the exercise of proprietary functions is a different matter
altogether.
Sovereign and Proprietary
Functions Distinguished
Sovereign or constituent functions are those which constitute the very bonds of society and
are compulsory in nature, while ministrant or proprietary functions are those undertaken by
way of advancing the general interests of society and are merely optional. 126 An exhaustive
discussion on the matter was provided by the Court in Bacani v. NACOCO: 127
xxx This institution, when referring to the national government, has reference to what our
Constitution has established composed of three great departments, the legislative,
executive, and the judicial, through which the powers and functions of government are
exercised. These functions are twofold: constituent and ministrant. The former are those
which constitute the very bonds of society and are compulsory in nature; the latter are those
that are undertaken only by way of advancing the general interests of society, and are
merely optional. President Wilson enumerates the constituent functions as follows:
"'(1) The keeping of order and providing for the protection of persons and property from
violence and robbery.
'(2) The fixing of the legal relations between man and wife and between parents and
children.
Josef Elvin Campos
'(3) The regulation of the holding, transmission, and interchange of property, and the
determination of its liabilities for debt or for crime.
'(4) The determination of contract rights between individuals.
'(5) The definition and punishment of crime.
'(6) The administration of justice in civil cases.
'(7) The determination of the political duties, privileges, and relations of citizens.
'(8) Dealings of the state with foreign powers: the preservation of the state from external
danger or encroachment and the advancement of its international interests.'" (Malcolm, The
Government of the Philippine Islands, p. 19.)
The most important of the ministrant functions are: public works, public education, public
charity, health and safety regulations, and regulations of trade and industry. The principles
determining whether or not a government shall exercise certain of these optional functions
are: (1) that a government should do for the public welfare those things which private capital
would not naturally undertake and (2) that a government should do these things which by its
very nature it is better equipped to administer for the public welfare than is any private
individual or group of individuals. (Malcolm, The Government of the Philippine Islands, pp.
19-20.)
From the above we may infer that, strictly speaking, there are functions which our
government is required to exercise to promote its objectives as expressed in our
Constitution and which are exercised by it as an attribute of sovereignty, and those which it
may exercise to promote merely the welfare, progress and prosperity of the people. To this
latter class belongs the organization of those corporations owned or controlled by the
government to promote certain aspects of the economic life of our people such as the
National Coconut Corporation. These are what we call government-owned or controlled
corporations which may take on the form of a private enterprise or one organized with
powers and formal characteristics of a private corporations under the Corporation Law. 128
The Court in Bacani rejected the proposition that the National Coconut Corporation
exercised sovereign functions:
Does the fact that these corporations perform certain functions of government make them a
part of the Government of the Philippines?
The answer is simple: they do not acquire that status for the simple reason that they do not
come under the classification of municipal or public corporation. Take for instance the
National Coconut Corporation. While it was organized with the purpose of "adjusting the
coconut industry to a position independent of trade preferences in the United States" and of
providing "Facilities for the better curing of copra products and the proper utilization of
coconut by-products," a function which our government has chosen to exercise to promote
the coconut industry, however, it was given a corporate power separate and distinct from
our government, for it was made subject to the provisions of our Corporation Law in so far
as its corporate existence and the powers that it may exercise are concerned (sections 2
and 4, Commonwealth Act No. 518). It may sue and be sued in the same manner as any
other private corporations, and in this sense it is an entity different from our government. As
this Court has aptly said, "The mere fact that the Government happens to be a majority
stockholder does not make it a public corporation" (National Coal Co. vs. Collector of
Internal Revenue, 46 Phil., 586-587). "By becoming a stockholder in the National Coal
Company, the Government divested itself of its sovereign character so far as respects the
transactions of the corporation. . . . Unlike the Government, the corporation may be sued
without its consent, and is subject to taxation. Yet the National Coal Company remains an
agency or instrumentality of government." (Government of the Philippine Islands vs.
Springer, 50 Phil., 288.)
The following restatement of the entrenched rule by former SEC Chairperson Rosario
Lopez bears noting:
The fact that government corporations are instrumentalities of the State does not divest
them with immunity from suit. (Malong v. PNR, 138 SCRA p. 63) It is settled that when the
government engages in a particular business through the instrumentality of a corporation, it
divests itself pro hoc vice of its sovereign character so as to subject itself to the rules
governing private corporations, (PNB v. Pabolan 82 SCRA 595) and is to be treated like any
other corporation. (PNR v. Union de Maquinistas Fogonero y Motormen, 84 SCRA 223)
In the same vein, when the government becomes a stockholder in a corporation, it does not
exercise sovereignty as such. It acts merely as a corporator and exercises no other power
in the management of the affairs of the corporation than are expressly given by the
incorporating act. Nor does the fact that the government may own all or a majority of the
capital stock take from the corporation its character as such, or make the government the
real party in interest. (Amtorg Trading Corp. v. US 71 F2d 524, 528) 129
Josef Elvin Campos
MIAA Performs Proprietary
Functions No Matter How
Vital to the Public Interest
The simple truth is that, based on these accepted doctrinal tests, MIAA performs proprietary
functions. The operation of an airport facility by the State may be imbued with public
interest, but it is by no means indispensable or obligatory on the national government. In
fact, as demonstrated in other countries, it makes a lot of economic sense to leave the
operation of airports to the private sector.
The majority tries to becloud this issue by pointing out that the MIAA does not compete in
the marketplace as there is no competing international airport operated by the private
sector; and that MIAA performs an essential public service as the primary domestic and
international airport of the Philippines. This premise is false, for one. On a local scale, MIAA
competes with other international airports situated in the Philippines, such as Davao
International Airport and MCIAA. More pertinently, MIAA also competes with other
international airports in Asia, at least. International airlines take into account the quality and
conditions of various international airports in determining the number of flights it would
assign to a particular airport, or even in choosing a hub through which destinations
necessitating connecting flights would pass through.
Even if it could be conceded that MIAA does not compete in the market place, the example
of the Philippine National Railways should be taken into account. The PNR does not
compete in the marketplace, and performs an essential public service as the operator of the
railway system in the Philippines. Is the PNR engaged in sovereign functions? The Court, in
Malong v. Philippine National Railways,130 held that it was not.131
Even more relevant to this particular case is Teodoro v. National Airports
Corporation,132 concerning the proper appreciation of the functions performed by the Civil
Aeronautics Administration (CAA), which had succeeded the defunction National Airports
Corporation. The CAA claimed that as an unincorporated agency of the Republic of the
Philippines, it was incapable of suing and being sued. The Court noted:
Among the general powers of the Civil Aeronautics Administration are, under Section 3, to
execute contracts of any kind, to purchase property, and to grant concession rights, and
under Section 4, to charge landing fees, royalties on sales to aircraft of aviation gasoline,
accessories and supplies, and rentals for the use of any property under its management.
These provisions confer upon the Civil Aeronautics Administration, in our opinion, the power
to sue and be sued. The power to sue and be sued is implied from the power to transact
private business. And if it has the power to sue and be sued on its behalf, the Civil
Aeronautics Administration with greater reason should have the power to prosecute and
defend suits for and against the National Airports Corporation, having acquired all the
properties, funds and choses in action and assumed all the liabilities of the latter. To deny
the National Airports Corporation's creditors access to the courts of justice against the Civil
Aeronautics Administration is to say that the government could impair the obligation of its
corporations by the simple expedient of converting them into unincorporated agencies. 133
xxx
Eventually, the charter of the CAA was revised, and it among its expanded functions was
"[t]o administer, operate, manage, control, maintain and develop the Manila International
Airport."134 Notwithstanding this expansion, in the 1988 case of CAA v. Court of
Appeals135 the Court reaffirmed the ruling that the CAA was engaged in "private or non-
governmental functions."136 Thus, the Court had already ruled that the predecessor agency
of MIAA, the CAA was engaged in private or non-governmental functions. These are more
precedents ignored by the majority. The following observation from the Teodoro case very
well applies to MIAA.
The Civil Aeronautics Administration comes under the category of a private entity. Although
not a body corporate it was created, like the National Airports Corporation, not to maintain a
necessary function of government, but to run what is essentially a business, even if
revenues be not its prime objective but rather the promotion of travel and the convenience
of the traveling public. It is engaged in an enterprise which, far from being the exclusive
prerogative of state, may, more than the construction of public roads, be undertaken by
private concerns.137
If the determinative point in distinguishing between sovereign functions and proprietary
functions is the vitality of the public service being performed, then it should be noted that
there is no more important public service performed than that engaged in by public utilities.
But notably, the Constitution itself authorizes private persons to exercise these functions as
it allows them to operate public utilities in this country 138 If indeed such functions are actually
Josef Elvin Campos
sovereign and belonging properly to the government, shouldn't it follow that the exercise of
these tasks remain within the exclusive preserve of the State?
There really is no prohibition against the government taxing itself, 139 and nothing obscene
with allowing government entities exercising proprietary functions to be taxed for the
purpose of raising the coffers of LGUs. On the other hand, it would be an even more
noxious proposition that the government or the instrumentalities that it owns are above the
law and may refuse to pay a validly imposed tax. MIAA, or any similar entity engaged in the
exercise of proprietary, and not sovereign functions, cannot avoid the adverse-effects of tax
evasion simply on the claim that it is imbued with some of the attributes of government.
VII.
MIAA Property Not Subject to
Execution Sale Without Consent
Of the President.
Despite the fact that the City of Parañaque ineluctably has the power to impose real
property taxes over the MIAA, there is an equally relevant statutory limitation on this power
that must be fully upheld. Section 3 of the MIAA charter states that "[a]ny portion [of the
[lands transferred, conveyed and assigned to the ownership and administration of the MIAA]
shall not be disposed through sale or through any other mode unless specifically approved
by the President of the Philippines."140
Nothing in the Local Government Code, even with its wide grant of powers to LGUs, can be
deemed as repealing this prohibition under Section 3, even if it effectively forecloses one
possible remedy of the LGU in the collection of delinquent real property taxes. While the
Local Government Code withdrew all previous local tax exemptions of the MIAA and other
natural and juridical persons, it did not similarly withdraw any previously enacted
prohibitions on properties owned by GOCCs, agencies or instrumentalities. Moreover, the
resulting legal effect, subjecting on one hand the MIAA to local taxes but on the other hand
shielding its properties from any form of sale or disposition, is not contradictory or
paradoxical, onerous as its effect may be on the LGU. It simply means that the LGU has to
find another way to collect the taxes due from MIAA, thus paving the way for a mutually
acceptable negotiated solution.141
There are several other reasons this statutory limitation should be upheld and applied to this
case. It is at this juncture that the importance of the Manila Airport to our national life and
commerce may be accorded proper consideration. The closure of the airport, even by
reason of MIAA's legal omission to pay its taxes, will have an injurious effect to our national
economy, which is ever reliant on air travel and traffic. The same effect would obtain if
ownership and administration of the airport were to be transferred to an LGU or some other
entity which were not specifically chartered or tasked to perform such vital function. It is for
this reason that the MIAA charter specifically forbids the sale or disposition of MIAA
properties without the consent of the President. The prohibition prevents the peremptory
closure of the MIAA or the hampering of its operations on account of the demands of its
creditors. The airport is important enough to be sheltered by legislation from ordinary legal
processes.
Section 3 of the MIAA charter may also be appreciated as within the proper exercise of
executive control by the President over the MIAA, a GOCC which despite its separate legal
personality, is still subsumed within the executive branch of government. The power of
executive control by the President should be upheld so long as such exercise does not
contravene the Constitution or the law, the President having the corollary duty to faithfully
execute the Constitution and the laws of the land. 142 In this case, the exercise of executive
control is precisely recognized and authorized by the legislature, and it should be upheld
even if it comes at the expense of limiting the power of local government units to collect real
property taxes.
Had this petition been denied instead with Mactan as basis, but with the caveat that the
MIAA properties could not be subject of execution sale without the consent of the President,
I suspect that the parties would feel little distress. Through such action, both the Local
Government Code and the MIAA charter would have been upheld. The prerogatives of
LGUs in real property taxation, as guaranteed by the Local Government Code, would have
been preserved, yet the concerns about the ruinous effects of having to close the Manila
International Airport would have been averted. The parties would then be compelled to try
harder at working out a compromise, a task, if I might add, they are all too willing to engage
in.143 Unfortunately, the majority will cause precisely the opposite result of unremitting
hostility, not only to the City of Parañaque, but to the thousands of LGUs in the country.
VIII.
Summary of Points
Josef Elvin Campos
My points may be summarized as follows:
1) Mactan and a long line of succeeding cases have already settled the rule that under the
Local Government Code, enacted pursuant to the constitutional mandate of local autonomy,
all natural and juridical persons, even those GOCCs, instrumentalities and agencies, are no
longer exempt from local taxes even if previously granted an exemption. The only
exemptions from local taxes are those specifically provided under the Local Government
Code itself, or those enacted through subsequent legislation.
2) Under the Local Government Code, particularly Section 232, instrumentalities, agencies
and GOCCs are generally liable for real property taxes. The only exemptions therefrom
under the same Code are provided in Section 234, which include real property owned by
the Republic of the Philippines or any of its political subdivisions.
3) The subject properties are owned by MIAA, a GOCC, holding title in its own name. MIAA,
a separate legal entity from the Republic of the Philippines, is the legal owner of the
properties, and is thus liable for real property taxes, as it does not fall within the exemptions
under Section 234 of the Local Government Code.
4) The MIAA charter expressly bars the sale or disposition of MIAA properties. As a result,
the City of Parañaque is prohibited from seizing or selling these properties by public auction
in order to satisfy MIAA's tax liability. In the end, MIAA is encumbered only by a limited lien
possessed by the City of Parañaque.
On the other hand, the majority's flaws are summarized as follows:
1) The majority deliberately ignores all precedents which run counter to its hypothesis,
including Mactan. Instead, it relies and directly cites those doctrines and precedents which
were overturned by Mactan. By imposing a different result than that warranted by the
precedents without explaining why Mactan or the other precedents are wrong, the majority
attempts to overturn all these ruling sub silencio and without legal justification, in a manner
that is not sanctioned by the practices and traditions of this Court.
2) The majority deliberately ignores the policy and philosophy of local fiscal autonomy, as
mandated by the Constitution, enacted under the Local Government Code, and affirmed by
precedents. Instead, the majority asserts that there is no sound rationale for local
governments to tax national government instrumentalities, despite the blunt existence of
such rationales in the Constitution, the Local Government Code, and precedents.
3) The majority, in a needless effort to justify itself, adopts an extremely strained exaltation
of the Administrative Code above and beyond the Corporation Code and the various
legislative charters, in order to impose a wholly absurd definition of GOCCs that effectively
declassifies innumerable existing GOCCs, to catastrophic legal consequences.
4) The majority asserts that by virtue of Section 133(o) of the Local Government Code, all
national government agencies and instrumentalities are exempt from any form of local
taxation, in contravention of several precedents to the contrary and the proviso under
Section 133, "unless otherwise provided herein [the Local Government Code]."
5) The majority erroneously argues that MIAA holds its properties in trust for the Republic of
the Philippines, and that such properties are patrimonial in character. No express or implied
trust has been created to benefit the national government. The legal distinction between
sovereign and proprietary functions, as affirmed by jurisprudence, likewise preclude the
classification of MIAA properties as patrimonial.
IX.
Epilogue
If my previous discussion still fails to convince on how wrong the majority is, then the
following points are well-worth considering. The majority cites the Bangko Sentral ng
Pilipinas (Bangko Sentral) as a government instrumentality that exercises corporate powers
but not organized as a stock or non-stock corporation. Correspondingly for the majority, the
Bangko ng Sentral is exempt from all forms of local taxation by LGUs by virtue of the Local
Government Code.
Section 125 of Rep. Act No. 7653, The New Central Bank Act, states:
SECTION 125. Tax Exemptions. — The Bangko Sentral shall be exempt for a period of five
(5) years from the approval of this Act from all national, provincial, municipal and city taxes,
fees, charges and assessments.
The New Central Bank Act was promulgated after the Local Government Code if the BSP is
already preternaturally exempt from local taxation owing to its personality as an
"government instrumentality," why then the need to make a new grant of exemption, which if
the majority is to be believed, is actually a redundancy. But even more tellingly, does not
this provision evince a clear intent that after the lapse of five (5) years, that the Bangko
Sentral will be liable for provincial, municipal and city taxes? This is the clear congressional
Josef Elvin Campos
intent, and it is Congress, not this Court which dictates which entities are subject to taxation
and which are exempt.
Perhaps this notion will offend the majority, because the Bangko Sentral is not even a
government owned corporation, but a government instrumentality, or perhaps "loosely", a
"government corporate entity." How could such an entity like the Bangko Sentral , which is
not even a government owned corporation, be subjected to local taxation like any mere
mortal? But then, see Section 1 of the New Central Bank Act:
SECTION 1. Declaration of Policy. — The State shall maintain a central monetary authority
that shall function and operate as an independent and accountable body corporate in the
discharge of its mandated responsibilities concerning money, banking and credit. In line
with this policy, and considering its unique functions and responsibilities, the central
monetary authority established under this Act, while being a government-owned
corporation, shall enjoy fiscal and administrative autonomy.
Apparently, the clear legislative intent was to create a government corporation known as the
Bangko Sentral ng Pilipinas. But this legislative intent, the sort that is evident from the text
of the provision and not the one that needs to be unearthed from the bowels of the archival
offices of the House and the Senate, is for naught to the majority, as it contravenes the
Administrative Code of 1987, which after all, is "the governing law defining the status and
relationship of government agencies and instrumentalities" and thus superior to the
legislative charter in determining the personality of a chartered entity. Its like saying that the
architect who designed a school building is better equipped to teach than the professor
because at least the architect is familiar with the geometry of the classroom.
Consider further the example of the Philippine Institute of Traditional and Alternative Health
Care (PITAHC), created by Republic Act No. 8243 in 1997. It has similar characteristics as
MIAA in that it is established as a body corporate, 144 and empowered with the attributes of a
corporation,145 including the power to purchase or acquire real properties. 146 However the
PITAHC has no capital stock and no members, thus following the majority, it is not a GOCC.
The state policy that guides PITAHC is the development of traditional and alternative health
care,147 and its objectives include the promotion and advocacy of alternative, preventive and
curative health care modalities that have been proven safe, effective and cost
effective.148 "Alternative health care modalities" include "other forms of non-allophatic,
occasionally non-indigenous or imported healing methods" which include, among others
"reflexology, acupuncture, massage, acupressure" and chiropractics. 149
Given these premises, there is no impediment for the PITAHC to purchase land and
construct thereupon a massage parlor that would provide a cheaper alternative to the
opulent spas that have proliferated around the metropolis. Such activity is in line with the
purpose of the PITAHC and with state policy. Is such massage parlor exempt from realty
taxes? For the majority, it is, for PITAHC is an instrumentality or agency exempt from local
government taxation, which does not fall under the exceptions under Section 234 of the
Local Government Code. Hence, this massage parlor would not just be a shelter for frazzled
nerves, but for taxes as well.
Ridiculous? One might say, certainly a decision of the Supreme Court cannot be construed
to promote an absurdity. But precisely the majority, and the faulty reasoning it utilizes,
opens itself up to all sorts of mischief, and certainly, a tax-exempt massage parlor is one of
the lesser evils that could arise from the majority ruling. This is indeed a very strange and
very wrong decision.
I dissent.
DANTE O. TINGA
Associate Justice
Mactan Cebu International Airport Authority v. Marcoses (G.R. No.

120082, 11 September 1996)
G.R. No. 120082 September 11, 1996
MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY, petitioner,
vs.
HON. FERDINAND J. MARCOS, in his capacity as the Presiding Judge of the Regional
Trial Court, Branch 20, Cebu City, THE CITY OF CEBU, represented by its Mayor
HON. TOMAS R. OSMEÑA, and EUSTAQUIO B. CESA, respondents.

DAVIDE, JR., J.:
For review under Rule 45 of the Rules of Court on a pure question of law are the
decision of 22 March 19951 of the Regional Trial Court (RTC) of Cebu City, Branch
Josef Elvin Campos
20, dismissing the petition for declaratory relief in Civil Case No. CEB-16900 entitled
"Mactan Cebu International Airport Authority vs. City of Cebu", and its order of 4,
May 19952 denying the motion to reconsider the decision.
We resolved to give due course to this petition for its raises issues dwelling on the
scope of the taxing power of local government-owned and controlled corporations.
The uncontradicted factual antecedents are summarized in the instant petition as
follows:
Petitioner Mactan Cebu International Airport Authority (MCIAA) was created
by virtue of Republic Act No. 6958, mandated to "principally undertake the
economical, efficient and effective control, management and supervision of
the Mactan International Airport in the Province of Cebu and the Lahug
Airport in Cebu City, . . . and such other Airports as may be established in the
Province of Cebu . . . (Sec. 3, RA 6958). It is also mandated to:
a) encourage, promote and develop international
and domestic air traffic in the Central Visayas
and Mindanao regions as a means of making the
regions centers of international trade and
tourism, and accelerating the development of the
means of transportation and communication in
the country; and
b) upgrade the services and facilities of the
airports and to formulate internationally
acceptable standards of airport accommodation
and service.
Since the time of its creation, petitioner MCIAA enjoyed the privilege of
exemption from payment of realty taxes in accordance with Section 14 of its
Charter.
Sec. 14. Tax Exemptions. — The authority shall be exempt
from realty taxes imposed by the National Government or any
of its political subdivisions, agencies and instrumentalities . . .
On October 11, 1994, however, Mr. Eustaquio B. Cesa, Officer-in-Charge,
Office of the Treasurer of the City of Cebu, demanded payment for realty
taxes on several parcels of land belonging to the petitioner (Lot Nos. 913-G,
743, 88 SWO, 948-A, 989-A, 474, 109(931), I-M, 918, 919, 913-F, 941, 942,
947, 77 Psd., 746 and 991-A), located at Barrio Apas and Barrio
Kasambagan, Lahug, Cebu City, in the total amount of P2,229,078.79.
Petitioner objected to such demand for payment as baseless and unjustified,
claiming in its favor the aforecited Section 14 of RA 6958 which exempt it
from payment of realty taxes. It was also asserted that it is an instrumentality
of the government performing governmental functions, citing section 133 of
the Local Government Code of 1991 which puts limitations on the taxing
powers of local government units:
Sec. 133. Common Limitations on the Taxing Powers of Local
Government Units. — Unless otherwise provided herein, the
exercise of the taxing powers of provinces, cities,
municipalities, and barangay shall not extend to the levy of the
following:
a) . . .
x x x x x x x x x
o) Taxes, fees or charges of any kind on the
National Government, its agencies and
instrumentalities, and local government units.
(Emphasis supplied)
Respondent City refused to cancel and set aside petitioner's realty tax
account, insisting that the MCIAA is a government-controlled corporation
whose tax exemption privilege has been withdrawn by virtue of Sections 193
and 234 of the Local Governmental Code that took effect on January 1, 1992:
Sec. 193. Withdrawal of Tax Exemption Privilege. — Unless otherwise
provided in this Code, tax exemptions or incentives granted to, or presently
enjoyed by all persons whether natural or juridical, including government-
owned or controlled corporations, except local water districts, cooperatives
duly registered under RA No. 6938, non-stock, and non-profit hospitals and
Josef Elvin Campos
educational institutions, are hereby withdrawn upon the effectivity of this
Code. (Emphasis supplied)
xxx xxx xxx
Sec. 234. Exemptions from Real Property taxes. — . . .
(a) . . .
x x x x x x x x x
(c) . . .
Except as provided herein, any exemption from payment of real
property tax previously granted to, or presently enjoyed by all
persons, whether natural or juridical, including government-
owned or controlled corporations are hereby withdrawn upon
the effectivity of this Code.
As the City of Cebu was about to issue a warrant of levy against the
properties of petitioner, the latter was compelled to pay its tax account "under
protest" and thereafter filed a Petition for Declaratory Relief with the Regional
Trial Court of Cebu, Branch 20, on December 29, 1994. MCIAA basically
contended that the taxing powers of local government units do not extend to
the levy of taxes or fees of any kind on an instrumentality of the national
government. Petitioner insisted that while it is indeed a government-owned
corporation, it nonetheless stands on the same footing as an agency or
instrumentality of the national government. Petitioner insisted that while it is
indeed a government-owned corporation, it nonetheless stands on the same
footing as an agency or instrumentality of the national government by the very
nature of its powers and functions.
Respondent City, however, asserted that MACIAA is not an instrumentality of
the government but merely a government-owned corporation performing
proprietary functions As such, all exemptions previously granted to it were
deemed withdrawn by operation of law, as provided under Sections 193 and
234 of the Local Government Code when it took effect on January 1, 1992. 3
The petition for declaratory relief was docketed as Civil Case No. CEB-16900.
In its decision of 22 March 1995, 4 the trial court dismissed the petition in light of its
findings, to wit:
A close reading of the New Local Government Code of 1991 or RA 7160
provides the express cancellation and withdrawal of exemption of taxes by
government owned and controlled corporation per Sections after the
effectivity of said Code on January 1, 1992, to wit: [proceeds to quote
Sections 193 and 234]
Petitioners claimed that its real properties assessed by respondent City
Government of Cebu are exempted from paying realty taxes in view of the
exemption granted under RA 6958 to pay the same (citing Section 14 of RA
6958).
However, RA 7160 expressly provides that "All general and special laws,
acts, city charters, decress [sic], executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with
any of the provisions of this Code are hereby repealed or modified
accordingly." ([f], Section 534, RA 7160).
With that repealing clause in RA 7160, it is safe to infer and state that the tax
exemption provided for in RA 6958 creating petitioner had been expressly
repealed by the provisions of the New Local Government Code of 1991.
So that petitioner in this case has to pay the assessed realty tax of its
properties effective after January 1, 1992 until the present.
This Court's ruling finds expression to give impetus and meaning to the
overall objectives of the New Local Government Code of 1991, RA 7160. "It is
hereby declared the policy of the State that the territorial and political
subdivisions of the State shall enjoy genuine and meaningful local autonomy
to enable them to attain their fullest development as self-reliant communities
and make them more effective partners in the attainment of national goals.
Towards this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization whereby local government units shall be given more powers,
authority, responsibilities, and resources. The process of decentralization
shall proceed from the national government to the local government units. . . .
5
Josef Elvin Campos
Its motion for reconsideration having been denied by the trial court in its 4 May 1995
order, the petitioner filed the instant petition based on the following assignment of
errors:
I RESPONDENT JUDGE ERRED IN FAILING TO RULE THAT
THE PETITIONER IS VESTED WITH GOVERNMENT
POWERS AND FUNCTIONS WHICH PLACE IT IN THE SAME
CATEGORY AS AN INSTRUMENTALITY OR AGENCY OF
THE GOVERNMENT.
II RESPONDENT JUDGE ERRED IN RULING THAT
PETITIONER IS LIABLE TO PAY REAL PROPERTY TAXES
TO THE CITY OF CEBU.
Anent the first assigned error, the petitioner asserts that although it is a government-
owned or controlled corporation it is mandated to perform functions in the same
category as an instrumentality of Government. An instrumentality of Government is
one created to perform governmental functions primarily to promote certain aspects
of the economic life of the people. 6 Considering its task "not merely to efficiently
operate and manage the Mactan-Cebu International Airport, but more importantly, to
carry out the Government policies of promoting and developing the Central Visayas
and Mindanao regions as centers of international trade and tourism, and accelerating
the development of the means of transportation and communication in the
country,"7 and that it is an attached agency of the Department of Transportation and
Communication (DOTC),8 the petitioner "may stand in [sic] the same footing as an
agency or instrumentality of the national government." Hence, its tax exemption
privilege under Section 14 of its Charter "cannot be considered withdrawn with the
passage of the Local Government Code of 1991 (hereinafter LGC) because Section
133 thereof specifically states that the taxing powers of local government units shall
not extend to the levy of taxes of fees or charges of any kind on the national
government its agencies and instrumentalities."
As to the second assigned error, the petitioner contends that being an instrumentality
of the National Government, respondent City of Cebu has no power nor authority to
impose realty taxes upon it in accordance with the aforesaid Section 133 of the LGC,
as explained in Basco vs. Philippine Amusement and Gaming Corporation;9
Local governments have no power to tax instrumentalities of the National
Government. PAGCOR is a government owned or controlled corporation with
an original character, PD 1869. All its shares of stock are owned by the
National Government. . . .
PAGCOR has a dual role, to operate and regulate gambling casinos. The
latter joke is governmental, which places it in the category of an agency or
instrumentality of the Government. Being an instrumentality of the
Government, PAGCOR should be and actually is exempt from local taxes.
Otherwise, its operation might be burdened, impeded or subjected to control
by a mere Local government.
The states have no power by taxation or otherwise, to retard, impede, burden
or in any manner control the operation of constitutional laws enacted by
Congress to carry into execution the powers vested in the federal
government. (McCulloch v. Maryland, 4 Wheat 316, 4 L Ed. 579).
This doctrine emanates from the "supremacy" of the National Government
over local government.
Justice Holmes, speaking for the Supreme Court, make references to the
entire absence of power on the part of the States to touch, in that way
(taxation) at least, the instrumentalities of the United States (Johnson v.
Maryland, 254 US 51) and it can be agreed that no state or political
subdivision can regulate a federal instrumentality in such a way as to prevent
it from consummating its federal responsibilities, or even to seriously burden it
in the accomplishment of them. (Antieau Modern Constitutional Law, Vol. 2,
p. 140)
Otherwise mere creature of the State can defeat National policies thru
extermination of what local authorities may perceive to be undesirable
activities or enterprise using the power to tax as "a toll for regulation" (U.S. v.
Sanchez, 340 US 42). The power to tax which was called by Justice Marshall
as the "power to destroy" (McCulloch v. Maryland, supra) cannot be allowed
to defeat an instrumentality or creation of the very entity which has the
inherent power to wield it. (Emphasis supplied)
Josef Elvin Campos
It then concludes that the respondent Judge "cannot therefore correctly say that the
questioned provisions of the Code do not contain any distinction between a
governmental function as against one performing merely proprietary ones such that
the exemption privilege withdrawn under the said Code would apply
to all government corporations." For it is clear from Section 133, in relation to Section
234, of the LGC that the legislature meant to exclude instrumentalities of the national
government from the taxing power of the local government units.
In its comment respondent City of Cebu alleges that as local a government unit and
a political subdivision, it has the power to impose, levy, assess, and collect taxes
within its jurisdiction. Such power is guaranteed by the Constitution 10 and enhanced
further by the LGC. While it may be true that under its Charter the petitioner was
exempt from the payment of realty taxes, 11 this exemption was withdrawn by Section
234 of the LGC. In response to the petitioner's claim that such exemption was not
repealed because being an instrumentality of the National Government, Section 133
of the LGC prohibits local government units from imposing taxes, fees, or charges of
any kind on it, respondent City of Cebu points out that the petitioner is likewise a
government-owned corporation, and Section 234 thereof does not distinguish
between government-owned corporation, and Section 234 thereof does not
distinguish between government-owned corporation, and Section 234 thereof does
not distinguish between government-owned or controlled corporations performing
governmental and purely proprietary functions. Respondent city of Cebu urges this
the Manila International Airport Authority is a governmental-owned
corporation, 12 and to reject the application of Basco because it was
"promulgated . . . before the enactment and the singing into law of R.A. No. 7160,"
and was not, therefore, decided "in the light of the spirit and intention of the framers
of the said law.
As a general rule, 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 who are to pay it. Nevertheless, effective limitations thereon may be
imposed by the people through their Constitutions. 13 Our Constitution, for instance,
provides that the rule of taxation shall be uniform and equitable and Congress shall
evolve a progressive system of taxation. 14 So potent indeed is the power that it was
once opined that "the power to tax involves the power to destroy." 15 Verily, taxation is
a destructive power which interferes with the personal and property for the support of
the government. Accordingly, tax statutes must be construed strictly against the
government and liberally in favor of the taxpayer. 16 But since taxes are what we pay
for civilized society,17 or are the lifeblood of the nation, the law frowns against
exemptions from taxation and statutes granting tax exemptions are thus
construed strictissimi juris against the taxpayers and liberally in favor of the taxing
authority.18 A claim of exemption from tax payment must be clearly shown and based
on language in the law too plain to be mistaken. 19 Elsewise stated, taxation is the
rule, exemption therefrom is the exception. 20 However, if the grantee of the
exemption is a political subdivision or instrumentality, the rigid rule of construction
does not apply because the practical effect of the exemption is merely to reduce the
amount of money that has to be handled by the government in the course of its
operations.21
The power to tax is primarily vested in the Congress; however, in our jurisdiction, it
may be exercised by local legislative bodies, no longer merely by virtue of a valid
delegation as before, but pursuant to direct authority conferred by Section 5, Article
X of the Constitution.22 Under the latter, the exercise of the power may be subject to
such guidelines and limitations as the Congress may provide which, however, must
be consistent with the basic policy of local autonomy.
There can be no question that under Section 14 of R.A. No. 6958 the petitioner is
exempt from the payment of realty taxes imposed by the National Government or
any of its political subdivisions, agencies, and instrumentalities. Nevertheless, since
taxation is the rule and exemption therefrom the exception, the exemption may thus
be withdrawn at the pleasure of the taxing authority. The only exception to this rule is
where the exemption was granted to private parties based on material consideration
of a mutual nature, which then becomes contractual and is thus covered by the non-
impairment clause of the Constitution.23
Josef Elvin Campos
The LGC, enacted pursuant to Section 3, Article X of the constitution provides for the
exercise by local government units of their power to tax, the scope thereof or its
limitations, and the exemption from taxation.
Section 133 of the LGC prescribes the common limitations on the taxing powers of
local government units as follows:
Sec. 133. Common Limitations on the Taxing Power of Local Government
Units. — Unless otherwise provided herein, the exercise of the taxing powers
of provinces, cities, municipalities, and barangays shall not extend to the levy
of the following:
(a) Income tax, except when levied on banks and other
financial institutions;
(b) Documentary stamp tax;
(c) Taxes on estates, "inheritance, gifts, legacies and other
acquisitions mortis causa, except as otherwise provided herein
(d) Customs duties, registration fees of vessels and wharfage
on wharves, tonnage dues, and all other kinds of customs fees
charges and dues except wharfage on wharves constructed
and maintained by the local government unit concerned:
(e) Taxes, fees and charges and other imposition upon goods
carried into or out of, or passing through, the territorial
jurisdictions of local government units in the guise or charges
for wharfages, tolls for bridges or otherwise, or other taxes,
fees or charges in any form whatsoever upon such goods or
merchandise;
(f) Taxes fees or charges on agricultural and aquatic products
when sold by marginal farmers or fishermen;
(g) Taxes on business enterprise certified to be the Board of
Investment as pioneer or non-pioneer for a period of six (6) and
four (4) years, respectively from the date of registration;
(h) Excise taxes on articles enumerated under the National
Internal Revenue Code, as amended, and taxes, fees or
charges on petroleum products;
(i) Percentage or value added tax (VAT) on sales, barters or
exchanges or similar transactions on goods or services except
as otherwise provided herein;
(j) Taxes on the gross receipts of transportation contractor and
person engage in the transportation of passengers of freight by
hire and common carriers by air, land, or water, except as
provided in this code;
(k) Taxes on premiums paid by ways reinsurance or
retrocession;
(l) Taxes, fees, or charges for the registration of motor vehicles
and for the issuance of all kinds of licenses or permits for the
driving of thereof, except, tricycles;
(m) Taxes, fees, or other charges on Philippine product actually
exported, except as otherwise provided herein;
(n) Taxes, fees, or charges, on Countryside and Barangay
Business Enterprise and Cooperatives duly registered under
R.A. No. 6810 and Republic Act Numbered Sixty nine hundred
thirty-eight (R.A. No. 6938) otherwise known as the
"Cooperative Code of the Philippines; and
(o) TAXES, FEES, OR CHARGES OF ANY KIND ON THE
NATIONAL GOVERNMENT, ITS AGENCIES AND
INSTRUMENTALITIES, AND LOCAL GOVERNMENT UNITS.
(emphasis supplied)
Needless to say the last item (item o) is pertinent in this case. The "taxes, fees or
charges" referred to are "of any kind", hence they include all of these, unless
otherwise provided by the LGC. The term "taxes" is well understood so as to need
no further elaboration, especially in the light of the above enumeration. The term
"fees" means charges fixed by law or Ordinance for the regulation or inspection of
business activity,24 while "charges" are pecuniary liabilities such as rents or fees
against person or property.25
Josef Elvin Campos
Among the "taxes" enumerated in the LGC is real property tax, which is governed by
Section 232. It reads as follows:
Sec. 232. Power to Levy Real Property Tax. — A province or city or a
municipality within the Metropolitan Manila Area may levy on an annual ad
valorem tax on real property such as land, building, machinery and other
improvements not hereafter specifically exempted.
Section 234 of LGC provides for the exemptions from payment of real property taxes
and withdraws previous exemptions therefrom granted to natural and juridical
persons, including government owned and controlled corporations, except as
provided therein. It provides:
Sec. 234. Exemptions from Real Property Tax. — The following are
exempted from payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or
any of its political subdivisions except when the beneficial use
thereof had been granted, for reconsideration or otherwise, to a
taxable person;
(b) Charitable institutions, churches, parsonages or convents
appurtenants thereto, mosques nonprofits or religious
cemeteries and all lands, building and improvements actually,
directly, and exclusively used for religious charitable or
educational purposes;
(c) All machineries and equipment that are actually, directly and
exclusively used by local water districts and government-owned
or controlled corporations engaged in the supply and
distribution of water and/or generation and transmission of
electric power;
(d) All real property owned by duly registered cooperatives as
provided for under R.A. No. 6938; and;
(e) Machinery and equipment used for pollution control and
environmental protection.
Except as provided herein, any exemptions from payment of
real property tax previously granted to or presently enjoyed by,
all persons whether natural or juridical, including all government
owned or controlled corporations are hereby withdrawn upon
the effectivity of his Code.
These exemptions are based on the ownership, character, and use of the property.
Thus;
(a) Ownership Exemptions. Exemptions from real property
taxes on the basis of ownership are real properties owned by:
(i) the Republic, (ii) a province, (iii) a city, (iv) a municipality, (v)
a barangay, and (vi) registered cooperatives.
(b) Character Exemptions. Exempted from real property taxes
on the basis of their character are: (i) charitable institutions, (ii)
houses and temples of prayer like churches, parsonages or
convents appurtenant thereto, mosques, and (iii) non profit or
religious cemeteries.
(c) Usage exemptions. Exempted from real property taxes on
the basis of the actual, direct and exclusive use to which they
are devoted are: (i) all lands buildings and improvements which
are actually, directed and exclusively used for religious,
charitable or educational purpose; (ii) all machineries and
equipment actually, directly and exclusively used or by local
water districts or by government-owned or controlled
corporations engaged in the supply and distribution of water
and/or generation and transmission of electric power; and (iii)
all machinery and equipment used for pollution control and
environmental protection.
To help provide a healthy environment in the midst of the modernization of
the country, all machinery and equipment for pollution control and
environmental protection may not be taxed by local governments.
2. Other Exemptions Withdrawn. All other exemptions
previously granted to natural or juridical persons including
Josef Elvin Campos
government-owned or controlled corporations are withdrawn
upon the effectivity of the Code.26
Section 193 of the LGC is the general provision on withdrawal of tax exemption
privileges. It provides:
Sec. 193. Withdrawal of Tax Exemption Privileges. — Unless otherwise
provided in this code, tax exemptions or incentives granted to or presently
enjoyed by all persons, whether natural or juridical, including government-
owned, or controlled corporations, except local water districts, cooperatives
duly registered under R.A. 6938, non stock and non profit hospitals and
educational constitutions, are hereby withdrawn upon the effectivity of this
Code.
On the other hand, the LGC authorizes local government units to grant tax
exemption privileges. Thus, Section 192 thereof provides:
Sec. 192. Authority to Grant Tax Exemption Privileges. — Local government
units may, through ordinances duly approved, grant tax exemptions,
incentives or reliefs under such terms and conditions as they may deem
necessary.
The foregoing sections of the LGC speaks of: (a) the limitations on the taxing powers
of local government units and the exceptions to such limitations; and (b) the rule on
tax exemptions and the exceptions thereto. The use of exceptions of provisos in
these section, as shown by the following clauses:
(1) "unless otherwise provided herein" in the opening
paragraph of Section 133;
(2) "Unless otherwise provided in this Code" in section 193;
(3) "not hereafter specifically exempted" in Section 232; and
(4) "Except as provided herein" in the last paragraph of Section
234
initially hampers a ready understanding of the sections. Note, too, that the
aforementioned clause in section 133 seems to be inaccurately worded. Instead of
the clause "unless otherwise provided herein," with the "herein" to mean, of course,
the section, it should have used the clause "unless otherwise provided in this Code."
The former results in absurdity since the section itself enumerates what are beyond
the taxing powers of local government units and, where exceptions were intended,
the exceptions were explicitly indicated in the text. For instance, in item (a) which
excepts the income taxes "when livied on banks and other financial institutions", item
(d) which excepts "wharfage on wharves constructed and maintained by the local
government until concerned"; and item (1) which excepts taxes, fees, and charges
for the registration and issuance of license or permits for the driving of "tricycles". It
may also be observed that within the body itself of the section, there are exceptions
which can be found only in other parts of the LGC, but the section interchangeably
uses therein the clause "except as otherwise provided herein" as in items (c) and (i),
or the clause "except as otherwise provided herein" as in items (c) and (i), or the
clause "excepts as provided in this Code" in item (j). These clauses would be
obviously unnecessary or mere surplus-ages if the opening clause of the section
were" "Unless otherwise provided in this Code" instead of "Unless otherwise
provided herein". In any event, even if the latter is used, since under Section 232
local government units have the power to levy real property tax, except those
exempted therefrom under Section 234, then Section 232 must be deemed to qualify
Section 133.
Thus, reading together Section 133, 232 and 234 of the LGC, we conclude that as a
general rule, as laid down in Section 133 the taxing powers of local government units
cannot extend to the levy of inter alia, "taxes, fees, and charges of any kind of the
National Government, its agencies and instrumentalties, and local government
units"; however, pursuant to Section 232, provinces, cities, municipalities in the
Metropolitan Manila Area may impose the real property tax except on, inter alia, "real
property owned by the Republic of the Philippines or any of its political subdivisions
except when the beneficial used thereof has been granted, for consideration or
otherwise, to a taxable person", as provided in item (a) of the first paragraph of
Section 234.
As to tax exemptions or incentives granted to or presently enjoyed by natural or
juridical persons, including government-owned and controlled corporations, Section
193 of the LGC prescribes the general rule, viz., they are withdrawn upon the
effectivity of the LGC, except upon the effectivity of the LGC, except those granted
Josef Elvin Campos
to local water districts, cooperatives duly registered under R.A. No. 6938, non stock
and non-profit hospitals and educational institutions, and unless otherwise provided
in the LGC. The latter proviso could refer to Section 234, which enumerates the
properties exempt from real property tax. But the last paragraph of Section 234
further qualifies the retention of the exemption in so far as the real property taxes are
concerned by limiting the retention only to those enumerated there-in; all others not
included in the enumeration lost the privilege upon the effectivity of the LGC.
Moreover, even as the real property is owned by the Republic of the Philippines, or
any of its political subdivisions covered by item (a) of the first paragraph of Section
234, the exemption is withdrawn if the beneficial use of such property has been
granted to taxable person for consideration or otherwise.
Since the last paragraph of Section 234 unequivocally withdrew, upon the effectivity
of the LGC, exemptions from real property taxes granted to natural or juridical
persons, including government-owned or controlled corporations, except as provided
in the said section, and the petitioner is, undoubtedly, a government-owned
corporation, it necessarily follows that its exemption from such tax granted it in
Section 14 of its charter, R.A. No. 6958, has been withdrawn. Any claim to the
contrary can only be justified if the petitioner can seek refuge under any of the
exceptions provided in Section 234, but not under Section 133, as it now asserts,
since, as shown above, the said section is qualified by Section 232 and 234.
In short, the petitioner can no longer invoke the general rule in Section 133 that the
taxing powers of the local government units cannot extend to the levy of:
(o) taxes, fees, or charges of any kind on the National
Government, its agencies, or instrumentalities, and local
government units.
I must show that the parcels of land in question, which are real property, are any one
of those enumerated in Section 234, either by virtue of ownership, character, or use
of the property. Most likely, it could only be the first, but not under any explicit
provision of the said section, for one exists. In light of the petitioner's theory that it is
an "instrumentality of the Government", it could only be within be first item of the first
paragraph of the section by expanding the scope of the terms Republic of the
Philippines" to embrace . . . . . . "instrumentalities" and "agencies" or expediency we
quote:
(a) real property owned by the Republic of the Philippines, or
any of the Philippines, or any of its political subdivisions except
when the beneficial use thereof has been granted, for
This view does not persuade us. In the first place, the petitioner's claim that it is an
instrumentality of the Government is based on Section 133(o), which expressly
mentions the word "instrumentalities"; and in the second place it fails to consider the
fact that the legislature used the phrase "National Government, its agencies and
instrumentalities" "in Section 133(o),but only the phrase "Republic of the Philippines
or any of its political subdivision "in Section 234(a).
The terms "Republic of the Philippines" and "National Government" are not
interchangeable. The former is boarder and synonymous with "Government of the
Republic of the Philippines" which the Administrative Code of the 1987 defines as
the "corporate governmental entity though which the functions of the government are
exercised through at the Philippines, including, saves as the contrary appears from
the context, the various arms through which political authority is made effective in the
Philippines, whether pertaining to the autonomous reason, the provincial, city,
municipal or barangay subdivision or other forms of local government." 27 These
autonomous regions, provincial, city, municipal or barangay subdivisions" are the
political subdivision.28
On the other hand, "National Government" refers "to the entire machinery of the
central government, as distinguished from the different forms of local
Governments."29 The National Government then is composed of the three great
departments the executive, the legislative and the judicial. 30
An "agency" of the Government refers to "any of the various units of the
Government, including a department, bureau, office instrumentality, or government-
owned or controlled corporation, or a local government or a distinct unit
therein;"31 while an "instrumentality" refers to "any agency of the National
Government, not integrated within the department framework, vested with special
functions or jurisdiction by law, endowed with some if not all corporate powers,
Josef Elvin Campos
administering special funds, and enjoying operational autonomy; usually through a
charter. This term includes regulatory agencies, chartered institutions and
government-owned and controlled corporations".32
If Section 234(a) intended to extend the exception therein to the withdrawal of the
exemption from payment of real property taxes under the last sentence of the said
section to the agencies and instrumentalities of the National Government mentioned
in Section 133(o), then it should have restated the wording of the latter. Yet, it did not
Moreover, that Congress did not wish to expand the scope of the exemption in
Section 234(a) to include real property owned by other instrumentalities or agencies
of the government including government-owned and controlled corporations is
further borne out by the fact that the source of this exemption is Section 40(a) of P.D.
No. 646, otherwise known as the Real Property Tax Code, which reads:
Sec 40. Exemption from Real Property Tax. — The exemption shall be as
follows:
(a) Real property owned by the Republic of the
Philippines or any of its political subdivisions and
any government-owned or controlled
corporations so exempt by is charter: Provided,
however, that this exemption shall not apply to
real property of the above mentioned entities the
beneficial use of which has been granted, for
Note that as a reproduced in Section 234(a), the phrase "and any government-
owned or controlled corporation so exempt by its charter" was excluded. The
justification for this restricted exemption in Section 234(a) seems obvious: to limit
further tax exemption privileges, specially in light of the general provision on
withdrawal of exemption from payment of real property taxes in the last paragraph of
property taxes in the last paragraph of Section 234. These policy considerations are
consistent with the State policy to ensure autonomy to local governments 33 and the
objective of the LGC that they enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant communities and make
them effective partners in the attainment of national goals. 34 The power to tax is the
most effective instrument to raise needed revenues to finance and support myriad
activities of local government units for the delivery of basic services essential to the
promotion of the general welfare and the enhancement of peace, progress, and
prosperity of the people. It may also be relevant to recall that the original reasons for
the withdrawal of tax exemption privileges granted to government-owned and
controlled corporations and all other units of government were that such privilege
resulted in serious tax base erosion and distortions in the tax treatment of similarly
situated enterprises, and there was a need for this entities to share in the
requirements of the development, fiscal or otherwise, by paying the taxes and other
charges due from them.35
The crucial issues then to be addressed are: (a) whether the parcels of land in
question belong to the Republic of the Philippines whose beneficial use has been
granted to the petitioner, and (b) whether the petitioner is a "taxable person".
Section 15 of the petitioner's Charter provides:
Sec. 15. Transfer of Existing Facilities and Intangible Assets. — All existing
public airport facilities, runways, lands, buildings and other properties,
movable or immovable, belonging to or presently administered by the
airports, and all assets, powers, rights, interests and privileges relating on
airport works, or air operations, including all equipment which are necessary
for the operations of air navigation, acrodrome control towers, crash, fire, and
rescue facilities are hereby transferred to the Authority: Provided however,
that the operations control of all equipment necessary for the operation of
radio aids to air navigation, airways communication, the approach control
office, and the area control center shall be retained by the Air Transportation
Office. No equipment, however, shall be removed by the Air Transportation
Office from Mactan without the concurrence of the authority. The authority
may assist in the maintenance of the Air Transportation Office equipment.
The "airports" referred to are the "Lahug Air Port" in Cebu City and the "Mactan
International AirPort in the Province of Cebu", 36 which belonged to the Republic of
the Philippines, then under the Air Transportation Office (ATO). 37
Josef Elvin Campos
It may be reasonable to assume that the term "lands" refer to "lands" in Cebu City
then administered by the Lahug Air Port and includes the parcels of land the
respondent City of Cebu seeks to levy on for real property taxes. This section
involves a "transfer" of the "lands" among other things, to the petitioner and not just
the transfer of the beneficial use thereof, with the ownership being retained by the
Republic of the Philippines.
This "transfer" is actually an absolute conveyance of the ownership thereof because
the petitioner's authorized capital stock consists of, inter alia "the value of such real
estate owned and/or administered by the airports." 38 Hence, the petitioner is now the
owner of the land in question and the exception in Section 234(c) of the LGC is
inapplicable.
Moreover, the petitioner cannot claim that it was never a "taxable person" under its
Charter. It was only exempted from the payment of real property taxes. The grant of
the privilege only in respect of this tax is conclusive proof of the legislative intent to
make it a taxable person subject to all taxes, except real property tax.
Finally, even if the petitioner was originally not a taxable person for purposes of real
property tax, in light of the forgoing disquisitions, it had already become even if it be
conceded to be an "agency" or "instrumentality" of the Government, a taxable person
for such purpose in view of the withdrawal in the last paragraph of Section 234 of
exemptions from the payment of real property taxes, which, as earlier adverted to,
applies to the petitioner.
Accordingly, the position taken by the petitioner is untenable. Reliance on Basco
vs. Philippine Amusement and Gaming Corporation 39 is unavailing since it was
decided before the effectivity of the LGC. Besides, nothing can prevent Congress
from decreeing that even instrumentalities or agencies of the government performing
governmental functions may be subject to tax. Where it is done precisely to fulfill a
constitutional mandate and national policy, no one can doubt its wisdom.
WHEREFORE, the instant petition is DENIED. The challenged decision and order of
the Regional Trial Court of Cebu, Branch 20, in Civil Case No. CEB-16900 are
AFFIRMED.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
City Government of Quezon City v. Bayan Telecommunications, Inc. (G.R.

No. 162015, 06 March 2006)
G.R. No. 162015 March 6, 2006
THE CITY GOVERNMENT OF QUEZON CITY, AND THE CITY TREASURER OF
QUEZON CITY, DR. VICTOR B. ENRIGA, Petitioners,
vs.
BAYAN TELECOMMUNICATIONS, INC., Respondent.
DECISION
GARCIA,J.:
Before the Court, on pure questions of law, is this petition for review on certiorari under Rule
45 of the Rules of Court to nullify and set aside the following issuances of the Regional Trial
Court (RTC) of Quezon City, Branch 227, in its Civil Case No. Q-02-47292, to wit:
1) Decision1 dated June 6, 2003, declaring respondent Bayan Telecommunications, Inc.
exempt from real estate taxation on its real properties located in Quezon City; and
2) Order2 dated December 30, 2003, denying petitioners’ motion for reconsideration.
The facts:
Respondent Bayan Telecommunications, Inc.3 (Bayantel) is a legislative franchise holder
under Republic Act (Rep. Act) No. 3259 4 to establish and operate radio stations for
domestic telecommunications, radiophone, broadcasting and telecasting.
Of relevance to this controversy is the tax provision of Rep. Act No. 3259, embodied in
Section 14 thereof, which reads:
SECTION 14. (a) The grantee shall be liable to pay the same taxes on its real estate,
buildings and personal property, exclusive of the franchise, as other persons or corporations
are now or hereafter may be required by law to pay. (b) The grantee shall further pay to the
Treasurer of the Philippines each year, within ten days after the audit and approval of the
accounts as prescribed in this Act, one and one-half per centum of all gross receipts from
the business transacted under this franchise by the said grantee (Emphasis supplied).
Josef Elvin Campos
On January 1, 1992, Rep. Act No. 7160, otherwise known as the "Local Government Code
of 1991" (LGC), took effect. Section 232 of the Code grants local government units within
the Metro Manila Area the power to levy tax on real properties, thus:
SEC. 232. – Power to Levy Real Property Tax. – A province or city or a municipality within
the Metropolitan Manila Area may levy an annual ad valorem tax on real property such as
land, building, machinery and other improvements not hereinafter specifically exempted.
Complementing the aforequoted provision is the second paragraph of Section 234 of the
same Code which withdrew any exemption from realty tax heretofore granted to or enjoyed
by all persons, natural or juridical, to wit:
SEC. 234 - Exemptions from Real Property Tax. The following are exempted from payment
of the real property tax:
xxx xxx xxx
Except as provided herein, any exemption from payment of real property tax previously
granted to, or enjoyed by, all persons, whether natural or juridical, including government-
owned-or-controlled corporations is hereby withdrawn upon effectivity of this Code
(Emphasis supplied).
On July 20, 1992, barely few months after the LGC took effect, Congress enacted Rep. Act
No. 7633, amending Bayantel’s original franchise. The amendatory law (Rep. Act No. 7633)
contained the following tax provision:
SEC. 11. The grantee, its successors or assigns shall be liable to pay the same taxes on
their real estate, buildings and personal property, exclusive of this franchise, as other
persons or corporations are now or hereafter may be required by law to pay. In addition
thereto, the grantee, its successors or assigns shall pay a franchise tax equivalent to three
percent (3%) of all gross receipts of the telephone or other telecommunications businesses
transacted under this franchise by the grantee, its successors or assigns and the said
percentage shall be in lieu of all taxes on this franchise or earnings thereof. Provided, That
the grantee, its successors or assigns shall continue to be liable for income taxes payable
under Title II of the National Internal Revenue Code …. xxx. [Emphasis supplied]
It is undisputed that within the territorial boundary of Quezon City, Bayantel owned several
real properties on which it maintained various telecommunications facilities. These real
properties, as hereunder described, are covered by the following tax declarations:
(a) Tax Declaration Nos. D-096-04071, D-096-04074, D-096-04072 and D-096-
04073 pertaining to Bayantel’s Head Office and Operations Center in Roosevelt St.,
San Francisco del Monte, Quezon City allegedly the nerve center of petitioner’s
telecommunications franchise operations, said Operation Center housing mainly
petitioner’s Network Operations Group and switching, transmission and related
equipment;
(b) Tax Declaration Nos. D-124-01013, D-124-00939, D-124-00920 and D-124-
00941 covering Bayantel’s land, building and equipment in Maginhawa St., Barangay
East Teacher’s Village, Quezon City which houses telecommunications facilities; and
(c) Tax Declaration Nos. D-011-10809, D-011-10810, D-011-10811, and D-011-
11540 referring to Bayantel’s Exchange Center located in Proj. 8, Brgy. Bahay Toro,
Tandang Sora, Quezon City which houses the Network Operations Group and cover
switching, transmission and other related equipment.
In 1993, the government of Quezon City, pursuant to the taxing power vested on local
government units by Section 5, Article X of the 1987 Constitution, infra, in relation to Section
232 of the LGC, supra, enacted City Ordinance No. SP-91, S-93, otherwise known as the
Quezon City Revenue Code (QCRC),5 imposing, under Section 5 thereof, a real property
tax on all real properties in Quezon City, and, reiterating in its Section 6, the withdrawal of
exemption from real property tax under Section 234 of the LGC, supra. Furthermore, much
like the LGC, the QCRC, under its Section 230, withdrew tax exemption privileges in
general, as follows:
SEC. 230. Withdrawal of Tax Exemption Privileges. – Unless otherwise provided in this
Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether
natural or juridical, including government owned or controlled corporations, except local
water districts, cooperatives duly registered under RA 6938, non-stock and non-profit
hospitals and educational institutions, business enterprises certified by the Board of
Investments (BOI) as pioneer or non-pioneer for a period of six (6) and four (4) years,
respectively, … are hereby withdrawn effective upon approval of this Code (Emphasis
supplied).
Conformably with the City’s Revenue Code, new tax declarations for Bayantel’s real
properties in Quezon City were issued by the City Assessor and were received by Bayantel
Josef Elvin Campos
on August 13, 1998, except one (Tax Declaration No. 124-01013) which was received on
July 14, 1999.
Meanwhile, on March 16, 1995, Rep. Act No. 7925, 6 otherwise known as the "Public
Telecommunications Policy Act of the Philippines," envisaged to level the playing field
among telecommunications companies, took effect. Section 23 of the Act provides:
SEC. 23. Equality of Treatment in the Telecommunications Industry. – Any advantage,
favor, privilege, exemption, or immunity granted under existing franchises, or may hereafter
be granted, shall ipso facto become part of previously granted telecommunications
franchises and shall be accorded immediately and unconditionally to the grantees of such
franchises: Provided, however, That the foregoing shall neither apply to nor affect
provisions of telecommunications franchises concerning territory covered by the franchise,
the life span of the franchise, or the type of service authorized by the franchise.
On January 7, 1999, Bayantel wrote the office of the City Assessor seeking the exclusion of
its real properties in the city from the roll of taxable real properties. With its request having
been denied, Bayantel interposed an appeal with the Local Board of Assessment Appeals
(LBAA). And, evidently on its firm belief of its exempt status, Bayantel did not pay the real
property taxes assessed against it by the Quezon City government.
On account thereof, the Quezon City Treasurer sent out notices of delinquency for the total
amount of P43,878,208.18, followed by the issuance of several warrants of levy against
Bayantel’s properties preparatory to their sale at a public auction set on July 30, 2002.
Threatened with the imminent loss of its properties, Bayantel immediately withdrew its
appeal with the LBAA and instead filed with the RTC of Quezon City a petition for
prohibition with an urgent application for a temporary restraining order (TRO) and/or writ of
preliminary injunction, thereat docketed as Civil Case No. Q-02-47292, which was raffled to
Branch 227 of the court.
On July 29, 2002, or in the eve of the public auction scheduled the following day, the lower
court issued a TRO, followed, after due hearing, by a writ of preliminary injunction via its
order of August 20, 2002.
And, having heard the parties on the merits, the same court came out with its challenged
Decision of June 6, 2003, the dispositive portion of which reads:
WHEREFORE, premises considered, pursuant to the enabling franchise under Section 11
of Republic Act No. 7633, the real estate properties and buildings of petitioner [now,
respondent Bayantel] which have been admitted to be used in the operation of petitioner’s
franchise described in the following tax declarations are hereby DECLARED exempt from
real estate taxation:
(1) Tax Declaration No. D-096-04071 –
The preliminary prohibitory injunction issued in the August 20, 2002 Order of this Court is
hereby made permanent. Since this is a resolution of a purely legal issue, there is no
pronouncement as to costs.
SO ORDERED.
Their motion for reconsideration having been denied by the court in its Order dated
December 30, 2003, petitioners elevated the case directly to this Court on pure questions of
law, ascribing to the lower court the following errors:
I. [I]n declaring the real properties of respondent exempt from real property taxes
notwithstanding the fact that the tax exemption granted to Bayantel in its original franchise
had been withdrawn by the [LGC] and that the said exemption was not restored by the
enactment of RA 7633.
II. [In] declaring the real properties of respondent exempt from real property taxes
notwithstanding the enactment of the [QCRC] which withdrew the tax exemption which may
have been granted by RA 7633.
Josef Elvin Campos
III. [In] declaring the real properties of respondent exempt from real property taxes
notwithstanding the vague and ambiguous grant of tax exemption provided under Section
11 of RA 7633.
IV. [In] declaring the real properties of respondent exempt from real property taxes
notwithstanding the fact that [it] had failed to exhaust administrative remedies in its claim for
real property tax exemption. (Words in bracket added.)
As we see it, the errors assigned may ultimately be reduced to two (2) basic issues, namely:
1. Whether or not Bayantel’s real properties in Quezon City are exempt from real
property taxes under its legislative franchise; and
2. Whether or not Bayantel is required to exhaust administrative remedies before
seeking judicial relief with the trial court.
We shall first address the second issue, the same being procedural in nature.
Petitioners argue that Bayantel had failed to avail itself of the administrative remedies
provided for under the LGC, adding that the trial court erred in giving due course to
Bayantel’s petition for prohibition. To petitioners, the appeal mechanics under the LGC
constitute Bayantel’s plain and speedy remedy in this case.
The Court does not agree.
Petitions for prohibition are governed by the following provision of Rule 65 of the Rules of
Court:
SEC. 2. Petition for prohibition. – When the proceedings of any tribunal, … are 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 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 respondent to desist from further proceedings in the action or matter
specified therein, or otherwise, granting such incidental reliefs as law and justice may
require.
With the reality that Bayantel’s real properties were already levied upon on account of its
nonpayment of real estate taxes thereon, the Court agrees with Bayantel that an appeal to
the LBAA is not a speedy and adequate remedy within the context of the aforequoted
Section 2 of Rule 65. This is not to mention of the auction sale of said properties already
scheduled on July 30, 2002.
Moreover, one of the recognized exceptions to the exhaustion- of-administrative remedies
rule is when, as here, only legal issues are to be resolved. In fact, the Court, cognizant of
the nature of the questions presently involved, gave due course to the instant petition. As
the Court has said in Ty vs. Trampe:7
xxx. Although as a rule, administrative remedies must first be exhausted before resort to
judicial action can prosper, there is a well-settled exception in cases where the controversy
does not involve questions of fact but only of law. xxx.
Lest it be overlooked, an appeal to the LBAA, to be properly considered, required prior
payment under protest of the amount of P43,878,208.18, a figure which, in the light of the
then prevailing Asian financial crisis, may have been difficult to raise up. Given this reality,
an appeal to the LBAA may not be considered as a plain, speedy and adequate remedy. It
is thus understandable why Bayantel opted to withdraw its earlier appeal with the LBAA
and, instead, filed its petition for prohibition with urgent application for injunctive relief in
Civil Case No. Q-02-47292. The remedy availed of by Bayantel under Section 2, Rule 65 of
the Rules of Court must be upheld.
This brings the Court to the more weighty question of whether or not Bayantel’s real
properties in Quezon City are, under its franchise, exempt from real property tax.
The lower court resolved the issue in the affirmative, basically owing to the phrase
"exclusive of this franchise" found in Section 11 of Bayantel’s amended franchise, Rep. Act
No. 7633. To petitioners, however, the language of Section 11 of Rep. Act No. 7633 is
neither clear nor unequivocal. The elaborate and extensive discussion devoted by the trial
court on the meaning and import of said phrase, they add, suggests as much. It is
petitioners’ thesis that Bayantel was in no time given any express exemption from the
payment of real property tax under its amendatory franchise.
There seems to be no issue as to Bayantel’s exemption from real estate taxes by virtue of
the term "exclusive of the franchise" qualifying the phrase "same taxes on its real estate,
buildings and personal property," found in Section 14, supra, of its franchise, Rep. Act No.
3259, as originally granted.
The legislative intent expressed in the phrase "exclusive of this franchise" cannot be
construed other than distinguishing between two (2) sets of properties, be they real or
personal, owned by the franchisee, namely, (a) those actually, directly and exclusively used
Josef Elvin Campos
in its radio or telecommunications business, and (b) those properties which are not so used.
It is worthy to note that the properties subject of the present controversy are only those
which are admittedly falling under the first category.
To the mind of the Court, Section 14 of Rep. Act No. 3259 effectively works to grant or
delegate to local governments of Congress’ inherent power to tax the franchisee’s
properties belonging to the second group of properties indicated above, that is, all
properties which, "exclusive of this franchise," are not actually and directly used in the
pursuit of its franchise. As may be recalled, the taxing power of local governments under
both the 1935 and the 1973 Constitutions solely depended upon an enabling law. Absent
such enabling law, local government units were without authority to impose and collect
taxes on real properties within their respective territorial jurisdictions. While Section 14 of
Rep. Act No. 3259 may be validly viewed as an implied delegation of power to tax, the
delegation under that provision, as couched, is limited to impositions over properties of the
franchisee which are not actually, directly and exclusively used in the pursuit of its
franchise. Necessarily, other properties of Bayantel directly used in the pursuit of its
business are beyond the pale of the delegated taxing power of local governments. In a very
real sense, therefore, real properties of Bayantel, save those exclusive of its franchise, are
subject to realty taxes. Ultimately, therefore, the inevitable result was that all realties which
are actually, directly and exclusively used in the operation of its franchise are "exempted"
from any property tax.
Bayantel’s franchise being national in character, the "exemption" thus granted under
Section 14 of Rep. Act No. 3259 applies to all its real or personal properties found
anywhere within the Philippine archipelago.
However, with the LGC’s taking effect on January 1, 1992, Bayantel’s "exemption" from real
estate taxes for properties of whatever kind located within the Metro Manila area was, by
force of Section 234 of the Code, supra, expressly withdrawn. But, not long thereafter,
however, or on July 20, 1992, Congress passed Rep. Act No. 7633 amending Bayantel’s
original franchise. Worthy of note is that Section 11 of Rep. Act No. 7633 is a virtual
reenacment of the tax provision, i.e., Section 14, supra, of Bayantel’s original franchise
under Rep. Act No. 3259. Stated otherwise, Section 14 of Rep. Act No. 3259 which was
deemed impliedly repealed by Section 234 of the LGC was expressly revived under Section
14 of Rep. Act No. 7633. In concrete terms, the realty tax exemption heretofore enjoyed by
Bayantel under its original franchise, but subsequently withdrawn by force of Section 234 of
the LGC, has been restored by Section 14 of Rep. Act No. 7633.
The Court has taken stock of the fact that by virtue of Section 5, Article X of the 1987
Constitution,8 local governments are empowered to levy taxes. And pursuant to this
constitutional empowerment, juxtaposed with Section 232 9 of the LGC, the Quezon City
government enacted in 1993 its local Revenue Code, imposing real property tax on all real
properties found within its territorial jurisdiction. And as earlier stated, the City’s Revenue
Code, just like the LGC, expressly withdrew, under Section 230 thereof, supra, all tax
exemption privileges in general.
This thus raises the question of whether or not the City’s Revenue Code pursuant to which
the city treasurer of Quezon City levied real property taxes against Bayantel’s real
properties located within the City effectively withdrew the tax exemption enjoyed by
Bayantel under its franchise, as amended.
Bayantel answers the poser in the negative arguing that once again it is only "liable to pay
the same taxes, as any other persons or corporations on all its real or personal properties,
exclusive of its franchise."
Bayantel’s posture is well-taken. While the system of local government taxation has
changed with the onset of the 1987 Constitution, the power of local government units to tax
is still limited. As we explained in Mactan Cebu International Airport Authority: 10
The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be
exercised by local legislative bodies, no longer merely be virtue of a valid delegation as
before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution.
Under the latter, the exercise of the power may be subject to such guidelines and limitations
as the Congress may provide which, however, must be consistent with the basic policy of
local autonomy. (at p. 680; Emphasis supplied.)
Clearly then, while a new slant on the subject of local taxation now prevails in the sense that
the former doctrine of local government units’ delegated power to tax had been effectively
modified with Article X, Section 5 of the 1987 Constitution now in place, .the basic doctrine
on local taxation remains essentially the same. For as the Court stressed in Mactan, "the
power to tax is [still] primarily vested in the Congress."
Josef Elvin Campos
This new perspective is best articulated by Fr. Joaquin G. Bernas, S.J., himself a
Commissioner of the 1986 Constitutional Commission which crafted the 1987 Constitution,
thus:
What is the effect of Section 5 on the fiscal position of municipal corporations? Section 5
does not change the doctrine that municipal corporations do not possess inherent powers of
taxation. What it does is to confer municipal corporations a general power to levy taxes and
otherwise create sources of revenue. They no longer have to wait for a statutory grant of
these powers. The power of the legislative authority relative to the fiscal powers of local
governments has been reduced to the authority to impose limitations on municipal powers.
Moreover, these limitations must be "consistent with the basic policy of local autonomy."
The important legal effect of Section 5 is thus to reverse the principle that doubts are
resolved against municipal corporations. Henceforth, in interpreting statutory provisions on
municipal fiscal powers, doubts will be resolved in favor of municipal corporations. It is
understood, however, that taxes imposed by local government must be for a public purpose,
uniform within a locality, must not be confiscatory, and must be within the jurisdiction of the
local unit to pass.11 (Emphasis supplied).
In net effect, the controversy presently before the Court involves, at bottom, a clash
between the inherent taxing power of the legislature, which necessarily includes the power
to exempt, and the local government’s delegated power to tax under the aegis of the 1987
Constitution.
Now to go back to the Quezon City Revenue Code which imposed real estate taxes on all
real properties within the city’s territory and removed exemptions theretofore "previously
granted to, or presently enjoyed by all persons, whether natural or juridical ….," 12 there can
really be no dispute that the power of the Quezon City Government to tax is limited by
Section 232 of the LGC which expressly provides that "a province or city or municipality
within the Metropolitan Manila Area may levy an annual ad valorem tax on real property
such as land, building, machinery, and other improvement not hereinafter specifically
exempted." Under this law, the Legislature highlighted its power to thereafter exempt certain
realties from the taxing power of local government units. An interpretation denying
Congress such power to exempt would reduce the phrase "not hereinafter specifically
exempted" as a pure jargon, without meaning whatsoever. Needless to state, such absurd
situation is unacceptable.
For sure, in Philippine Long Distance Telephone Company, Inc. (PLDT) vs. City of
Davao,13 this Court has upheld the power of Congress to grant exemptions over the power
of local government units to impose taxes. There, the Court wrote:
Indeed, the grant of taxing powers to local government units under the Constitution and the
LGC does not affect the power of Congress to grant exemptions to certain persons,
pursuant to a declared national policy. The legal effect of the constitutional grant to local
governments simply means that in interpreting statutory provisions on municipal taxing
powers, doubts must be resolved in favor of municipal corporations. (Emphasis supplied.)
As we see it, then, the issue in this case no longer dwells on whether Congress has the
power to exempt Bayantel’s properties from realty taxes by its enactment of Rep. Act No.
7633 which amended Bayantel’s original franchise. The more decisive question turns on
whether Congress actually did exempt Bayantel’s properties at all by virtue of Section 11 of
Rep. Act No. 7633.
Admittedly, Rep. Act No. 7633 was enacted subsequent to the LGC. Perfectly aware that
the LGC has already withdrawn Bayantel’s former exemption from realty taxes, Congress
opted to pass Rep. Act No. 7633 using, under Section 11 thereof, exactly the same defining
phrase "exclusive of this franchise" which was the basis for Bayantel’s exemption from
realty taxes prior to the LGC. In plain language, Section 11 of Rep. Act No. 7633 states that
"the grantee, its successors or assigns shall be liable to pay the same taxes on their real
estate, buildings and personal property, exclusive of this franchise, as other persons or
corporations are now or hereafter may be required by law to pay." The Court views this
subsequent piece of legislation as an express and real intention on the part of Congress to
once again remove from the LGC’s delegated taxing power, all of the franchisee’s
(Bayantel’s) properties that are actually, directly and exclusively used in the pursuit of its
franchise.
WHEREFORE, the petition is DENIED.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
Josef Elvin Campos
Drilon v. Lim ( G.R. No. 112497, 04 August 1994)
G.R. No. 112497 August 4, 1994
HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF JUSTICE, petitioner,
vs.
MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY TREASURER
ANTHONY ACEVEDO, SANGGUNIANG PANGLUNSOD AND THE CITY OF
MANILA, respondents.
The City Legal Officer for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for Caltex (Phils.).
Joseph Lopez for Sangguniang Panglunsod of Manila.
L.A. Maglaya for Petron Corporation.
CRUZ, J.:
The principal issue in this case is the constitutionality of Section 187 of the Local
Government Code reading as follows:
Procedure For Approval And Effectivity Of Tax Ordinances And Revenue
Measures; Mandatory Public Hearings. — The procedure for approval of local
tax ordinances and revenue measures shall be in accordance with the
provisions of this Code: Provided, That public hearings shall be conducted for
the purpose prior to the enactment thereof; Provided, further, That any
question on the constitutionality or legality of tax ordinances or revenue
measures may be raised on appeal within thirty (30) days from the effectivity
thereof to the Secretary of Justice who shall render a decision within sixty
(60) days from the date of receipt of the appeal: Provided, however, That
such appeal shall not have the effect of suspending the effectivity of the
ordinance and the accrual and payment of the tax, fee, or charge levied
therein: Provided, finally, That within thirty (30) days after receipt of the
decision or the lapse of the sixty-day period without the Secretary of Justice
acting upon the appeal, the aggrieved party may file appropriate proceedings
with a court of competent jurisdiction.
Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil companies and a
taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue Code,
null and void for non-compliance with the prescribed procedure in the enactment of tax
ordinances and for containing certain provisions contrary to law and public policy. 1
In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila
revoked the Secretary's resolution and sustained the ordinance, holding inter alia that the
procedural requirements had been observed. More importantly, it declared Section 187 of
the Local Government Code as unconstitutional because of its vesture in the Secretary of
Justice of the power of control over local governments in violation of the policy of local
autonomy mandated in the Constitution and of the specific provision therein conferring on
the President of the Philippines only the power of supervision over local governments. 2
The present petition would have us reverse that decision. The Secretary argues that the
annulled Section 187 is constitutional and that the procedural requirements for the
enactment of tax ordinances as specified in the Local Government Code had indeed not
been observed.
Parenthetically, this petition was originally dismissed by the Court for non-compliance with
Circular 1-88, the Solicitor General having failed to submit a certified true copy of the
challenged decision.3 However, on motion for reconsideration with the required certified true
copy of the decision attached, the petition was reinstated in view of the importance of the
issues raised therein.
We stress at the outset that the lower court had jurisdiction to consider the constitutionality
of Section 187, this authority being embraced in the general definition of the judicial power
to determine what are the valid and binding laws by the criterion of their conformity to the
fundamental law. Specifically, BP 129 vests in the regional trial courts jurisdiction over all
civil cases in which the subject of the litigation is incapable of pecuniary estimation, 4 even
as the accused in a criminal action has the right to question in his defense the
constitutionality of a law he is charged with violating and of the proceedings taken against
him, particularly as they contravene the Bill of Rights. Moreover, Article X, Section 5(2), of
the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and
orders of lower courts in 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.
Josef Elvin Campos
In the exercise of this jurisdiction, lower courts are advised to act with the utmost
circumspection, bearing in mind the consequences of a declaration of unconstitutionality
upon the stability of laws, no less than on the doctrine of separation of powers. As the
questioned act is usually the handiwork of the legislative or the executive departments, or
both, it will be prudent for such courts, if only out of a becoming modesty, to defer to the
higher judgment of this Court in the consideration of its validity, which is better determined
after a thorough deliberation by a collegiate body and with the concurrence of the majority
of those who participated in its discussion. 5
It is also emphasized that every court, including this Court, is charged with the duty of a
purposeful hesitation before declaring a law unconstitutional, on the theory that the measure
was first carefully studied by the executive and the legislative departments and determined
by them to be in accordance with the fundamental law before it was finally approved. To
doubt is to sustain. The presumption of constitutionality can be overcome only by the
clearest showing that there was indeed an infraction of the Constitution, and only when
such a conclusion is reached by the required majority may the Court pronounce, in the
discharge of the duty it cannot escape, that the challenged act must be struck down.
In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the Local
Government Code unconstitutional insofar as it empowered the Secretary of Justice to
review tax ordinances and, inferentially, to annul them. He cited the familiar distinction
between control and supervision, the first being "the power of an officer to alter or modify or
set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for the latter," while the second is "the power of a
superior officer to see to it that lower officers perform their functions in accordance with
law."6 His conclusion was that the challenged section gave to the Secretary the power of
control and not of supervision only as vested by the Constitution in the President of the
Philippines. This was, in his view, a violation not only of Article X, specifically Section 4
thereof, 7 and of Section 5 on the taxing powers of local governments, 8 and the policy of
local autonomy in general.
We do not share that view. The lower court was rather hasty in invalidating the provision.
Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality
of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When
he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his
own judgment for the judgment of the local government that enacted the measure.
Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his
own version of what the Code should be. He did not pronounce the ordinance unwise or
unreasonable as a basis for its annulment. He did not say that in his judgment it was a bad
law. What he found only was that it was illegal. All he did in reviewing the said measure was
determine if the petitioners were performing their functions in accordance with law, that is,
with the prescribed procedure for the enactment of tax ordinances and the grant of powers
to the city government under the Local Government Code. As we see it, that was an act not
of control but of mere supervision.
An officer in control lays down the rules in the doing of an act. If they are not followed, he
may, in his discretion, order the act undone or re-done by his subordinate or he may even
decide to do it himself. Supervision does not cover such authority. The supervisor or
superintendent merely sees to it that the rules are followed, but he himself does not lay
down such rules, nor does he have the discretion to modify or replace them. If the rules are
not observed, he may order the work done or re-done but only to conform to the prescribed
rules. He may not prescribe his own manner for the doing of the act. He has no judgment on
this matter except to see to it that the rules are followed. In the opinion of the Court,
Secretary Drilon did precisely this, and no more nor less than this, and so performed an act
not of control but of mere supervision.
The case of Taule v. Santos 9 cited in the decision has no application here because the
jurisdiction claimed by the Secretary of Local Governments over election contests in the
Katipunan ng Mga Barangay was held to belong to the Commission on Elections by
constitutional provision. The conflict was over jurisdiction, not supervision or control.
Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which
provided in its Section 2 as follows:
A tax ordinance shall go into effect on the fifteenth day after its passage,
unless the ordinance shall provide otherwise: Provided, however, That the
Secretary of Finance shall have authority to suspend the effectivity of any
ordinance within one hundred and twenty days after receipt by him of a copy
thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust,
excessive, oppressive, or confiscatory, or when it is contrary to declared
Josef Elvin Campos
national economy policy, and when the said Secretary exercises this authority
the effectivity of such ordinance shall be suspended, either in part or as a
whole, for a period of thirty days within which period the local legislative body
may either modify the tax ordinance to meet the objections thereto, or file an
appeal with a court of competent jurisdiction; otherwise, the tax ordinance or
the part or parts thereof declared suspended, shall be considered as revoked.
Thereafter, the local legislative body may not reimpose the same tax or fee
until such time as the grounds for the suspension thereof shall have ceased
to exist.
That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance
if, in his opinion, the tax or fee levied was unjust, excessive, oppressive or confiscatory.
Determination of these flaws would involve the exercise of judgment or discretion and not
merely an examination of whether or not the requirements or limitations of the law had been
observed; hence, it would smack of control rather than mere supervision. That power was
never questioned before this Court but, at any rate, the Secretary of Justice is not given the
same latitude under Section 187. All he is permitted to do is ascertain the constitutionality or
legality of the tax measure, without the right to declare that, in his opinion, it is unjust,
excessive, oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary
Drilon set aside the Manila Revenue Code only on two grounds, to with, the inclusion
therein of certain ultra vires provisions and non-compliance with the prescribed procedure
in its enactment. These grounds affected the legality, not the wisdom or reasonableness, of
the tax measure.
The issue of non-compliance with the prescribed procedure in the enactment of the Manila
Revenue Code is another matter.
In his resolution, Secretary Drilon declared that there were no written notices of public
hearings on the proposed Manila Revenue Code that were sent to interested parties as
required by Art. 276(b) of the Implementing Rules of the Local Government Code nor were
copies of the proposed ordinance published in three successive issues of a newspaper of
general circulation pursuant to Art. 276(a). No minutes were submitted to show that the
obligatory public hearings had been held. Neither were copies of the measure as approved
posted in prominent places in the city in accordance with Sec. 511(a) of the Local
Government Code. Finally, the Manila Revenue Code was not translated into Pilipino or
Tagalog and disseminated among the people for their information and guidance,
conformably to Sec. 59(b) of the Code.
Judge Palattao found otherwise. He declared that all the procedural requirements had been
observed in the enactment of the Manila Revenue Code and that the City of Manila had not
been able to prove such compliance before the Secretary only because he had given it only
five days within which to gather and present to him all the evidence (consisting of 25
exhibits) later submitted to the trial court.
To get to the bottom of this question, the Court acceded to the motion of the respondents
and called for the elevation to it of the said exhibits. We have carefully examined every one
of these exhibits and agree with the trial court that the procedural requirements have indeed
been observed. Notices of the public hearings were sent to interested parties as evidenced
by Exhibits G-1 to 17. The minutes of the hearings are found in Exhibits M, M-1, M-2, and
M-3. Exhibits B and C show that the proposed ordinances were published in the Balita and
the Manila Standard on April 21 and 25, 1993, respectively, and the approved ordinance
was published in the July 3, 4, 5, 1993 issues of the Manila Standard and in the July 6,
1993 issue of Balita, as shown by Exhibits Q, Q-1, Q-2, and Q-3.
The only exceptions are the posting of the ordinance as approved but this omission does
not affect its validity, considering that its publication in three successive issues of a
newspaper of general circulation will satisfy due process. It has also not been shown that
the text of the ordinance has been translated and disseminated, but this requirement
applies to the approval of local development plans and public investment programs of the
local government unit and not to tax ordinances.
We make no ruling on the substantive provisions of the Manila Revenue Code as their
validity has not been raised in issue in the present petition.
WHEREFORE, the judgment is hereby rendered REVERSING the challenged decision of
the Regional Trial Court insofar as it declared Section 187 of the Local Government Code
unconstitutional but AFFIRMING its finding that the procedural requirements in the
enactment of the Manila Revenue Code have been observed. No pronouncement as to
costs.
SO ORDERED.
Josef Elvin Campos
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Batangas City v. Pilipinas Shell Petroleum Corp. (G.R. No. 187631, 08

July 2015)
G.R. No. 187631 July 8, 2015
BATANGAS CITY, MARIA TERESA GERON, In her capacity as City Treasurer of
Batangas City and TEODULFO A. DEGUITO, In his capacity as City Legal Officer of
Batangas City, Petitioners,
vs.
PILIPINAS SHELL PETROLEUM CORPORATION, Respondent.
DECISION
PERALTA, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the Decision1 dated January 22, 2009 and Resolution 2 dated April 13, 2009 of the
Court of Tax Appeals (CTA) En Banc in CTA EB No. 350 which affirmed in toto the
Amended Decision3 dated July 31, 2007 and Resolution4 dated November 21, 2007 of the
CTA Second Division in CTA AC Case No. 10.
The facts follow.
Petitioner Batangas City is a local government unit (LGU) with the capacity to sue and be
sued under its Charter and Section 22(a)(2) of the Local Government Code (LGC) of 1991.
Petitioners Teodulfo A. Deguito and Benjamin E. Pargas are the CityLegal Officer and City
Treasurer, respectively, of Batangas City.
Respondent Pilipinas Shell Petroleum Corporation operates an oil refinery and depot in
Tabagao, Batangas City, which manufactures and produces petroleum products that are
distributed nationwide.
In 2002, respondent was only paying the amount of ₱98,964.71 for fees and other charges
which include the amount of ₱1,180.34 as Mayor’s Permit. However, on February 20, 2001,
petitioner Batangas City, through its City Legal Officer, sent a notice of assessment to
respondent demanding the payment of ₱92,373,720.50 and ₱312,656,253.04 as business
taxes for its manufacture and distribution of petroleum products. In addition, respondent
was also required and assessed to pay the amount of ₱4,299,851.00 as Mayor’s Permit
Fee based on the gross sales of its Tabagao Refinery. The assessment was allegedly
pursuant of Section 134 of the LGC of 1991 and Section 23 of its Batangas City Tax Code
of 2002.
In response, respondent filed a protest on April 17, 2002 contending among others that it is
not liable for the payment of the local business tax either as a manufacturer or distributor of
petroleum products. It further argued that the Mayor’s Permit Fees are exorbitant,
confiscatory, arbitrary, unreasonable and not commensurable with the cost of issuing a
license.
On May 13, 2002, petitioners denied respondent’s protest and declared that under Section
14 of the Batangas City Tax Code of 2002, they are empowered to withhold the issuance of
the Mayor’s Permit for failure of respondent to pay the business taxes on its manufacture
and distribution of petroleum products.
On June 17, 2002, respondent filed a Petition for Review pursuant to Section 195 of the
LGC of 1991 before the Regional Trial Court (RTC) of Batangas City.1âwphi1
In its petition, respondent maintained that petitioners have no authority to impose the said
taxes and fees, and argued that the levy of local business taxes on the business of
manufacturing and distributing gasoline and other petroleum products is contrary to law and
against national policy. It further contended that the Mayor’s Permit Fee levied by
petitioners were unreasonable and confiscatory.
In its Answer, petitioners contended that the City of Batangas can legally impose taxes on
the business of manufacturing and distribution of petroleum products, including the Mayor’s
Permit Fees upon respondent.
Trial thereafter ensued.
In the interim, respondent paid under protest the Mayor’s Permit Fees for the year 2003
amounting to ₱774,840.50 as manufacturer and ₱3,525,010.50 as distributor. When
respondent applied for the issuance of the Mayor’s Permit in 2004, it offered the amount of
₱150,000.00 as compromise Mayor’s Permit Fee without prejudice to the outcome of the
case then pending, which was rejected by petitioners.
On October 29, 2004, the RTC of Batangas City rendered a Decision 5 sustaining the
imposition of business taxes by petitioners upon the manufacture and distribution of
Josef Elvin Campos
petroleum products by respondent. However, the RTC withheld the imposition of Mayor’s
Permit Fee in deference to the provisions of Section 147 of the LGC, in relation to Section
143(h) of the same Code, which imposed a limit to the power of petitioners to collect the
said business taxes. The fallo of said decision reads:
WHEREFORE, in view of the foregoing premises, this Court hereby renders judgment as
follows:
1. The taxes on the privilege of engaging in the business of manufacturing, distribution or
dealing in petroleum products in the amount of ₱92,373,750.50 and ₱312,656,253.04,
respectively, imposed by Batangas City on Pilipinas Shell, is VALID.
2. Declaring the Mayor’s Permit Fee in the amount of ₱4,299,851.00 based on gross
receipts/sales as grossly excessive and unreasonable considering the aforesaid business
taxes. ACCORDINGLY, THE PETITIONER, PILIPINAS SHELL PETROLEUM
CORPORATION (PSPC), IS HEREBY ORDERED TO PAY THE AMOUNT OF
PH₱405,030,003.54 AS TAX ON ITS BUSINESS OF ENGAGING IN THE MANUFACTURE
AND DISTRIBUTION OF PETROLEUM PRODUCTS, WHILE THE ASSESSMENT OF
PH₱4,299,851.00 AS MAYOR’S PERMIT FEE IS HEREBY ORDERED REVOKED
WITHOUT PREJUDICE TO ITS MODIFICATION BY THE RESPONDENTS, BATANGAS
CITY, ET AL.
SO ORDERED.6
Unsatisfied, respondent filed a "Motion for Partial Reconsideration."
In an Order7 dated February 28, 2005, the RTC denied respondent’s motion for lack of
merit.
Hence, respondent filed a Petition for Review with Extremely Urgent Application for a
Temporary Restraining Order and/or a Writ of Preliminary Injunction with the CTA Second
Division on April 27, 2005.
Considering the urgency of the resolution of respondent’s Application for the Issuance of a
Writ of Preliminary Injunction, the CTA Second Division granted the said application and
ordered petitioners to hold in abeyance the collection of the questioned manufacturer and
distributor’s taxes, conditioned upon the filing of respondent of a surety bond in the amount
of ₱500,000,000.00.
In a Decision dated June 21, 2007,the CTA Second Division granted respondent’s petition.
It held that respondent is not subject to the business taxes on the manufacture and
distribution of petroleum products because of the express limitation provided under Section
133(h) of the LGC. The dispositive portion of said Decision reads:
WHEREFORE, premises considered, the judgment/order of the RTC Branch II of Batangas
City is hereby MODIFIED. As to the business taxes on the manufacture and distribution of
petroleum products, We find the [respondent] not liable for the same. As to the Mayor’s
permit, We find that it is excessive. Accordingly, the [petitioner] is hereby (a) declared
legally proscribed from imposing business taxes on the manufacture and distribution of
petroleum products and (b) to refund in the form of tax credit the excessive mayor’s permit
in the amount of THREE MILLION FIVE HUDNRED TWENTY-FIVE THOUSAND TEN
PESOS and FIFTY CENTAVOS (₱3,525,010.50)
SO ORDERED.8
On July 13, 2007, respondent filed a "Motion for Clarification" on the exact amount to be
refunded by petitioners as regards the Mayor’s Permit Fees.1âwphi1 After a perusal of the
"Motion for Clarification," the CTA Second Division found the motion partly meritorious.
Thus:
Indeed, there is a discrepancy in the amount to be refunded and to clarify, the amount
should be ₱3,870,860.00 as written in the body of the decisions as follows:
Since [petitioners] failed to modify the computation of the mayor’s permit fee and based on
justice and equity, [respondent] should be refunded with the mayor’s permit fees ordered
revoked by the court a quo.
The details of the additional amount of ₱4,299,851.00 mayor’s permit fees are as follows:
Manufacturer Distributor
Mayor’s Permit Fee ₱704,305.00 ₱3,166,555.00

License Fee 70,535.50
Prot. Fee Res/Bus 25,000.00
Fire Insp. Fee 1,000.00
Occ./Prof.Tax
Josef Elvin Campos
San Permit & San Insp. Fee 12,000.00
Fire Code Fee 320,455.00
Total Amount ₱774,840.50 ₱3,525,010.50
The amount to be refunded is not the full amount of ₱4,299,851.00 but the excessive
mayor’s permit for manufacturing and distributing in the amount of ₱704,305.00 and
₱3,166,555.00, respectively, or in the total amount of ₱3,870,860.00.
To conform to this aforequoted pronouncement, the dispositive portion of the assailed
decision should be amended so that the exact amount of the Mayor’s Permit Fees to be
refunded be changed from ₱3,525,010.50 to ₱3,870,860.00.
Section 2, Rule 36 of the Rules of Court reads as follows:
SEC. 2. Entry of Judgments and final orders.- If no appeal or motion for new trial or
reconsideration is filed within the time provided in these Rules, the judgment or final order
shall forthwith be entered by the clerk in the book of entries of judgments. The date of
finality of the judgment or final order shall be deemed to be the date of its entry.
In this case, PSPC received the Decision on June 28, 2007 and it filed its motion for
clarification (treated as a motion for reconsideration) on July 13, 2007 which is within the
period allowed by law. In effect, our Decision has not yet become final and executory.
Hence, our Decision may be amended.
Moreover, pursuant to Section 5(g), Rule 135 of the Revised Rules of Court that every court
shall have the power to amend or control its process and orders so as to make them
conformable to law and justice, the Second Division of this Court resolves to amend its
Decision dated June 21, 2007 by making the necessary corrections.
WHEREFORE, in view of the foregoing, [respondent]’s Motion for Clarification is partly
GRANTED. Accordingly, the dispositive portion of this Court’s Decision dated June 21,
2007 is hereby AMENDED as follows:
WHEREFORE, premises considered, the judgment/order of the RTC Branch II of Batangas
City is hereby MODIFIED. As to the business taxes on the manufacture and distribution of
petroleum products, We find the [respondent] not liable for the same. As to the mayor’s
permit, We find that it is excessive. Accordingly, the [petitioner] is hereby (a) declared
legally proscribed from imposing business taxes on the manufacture and distribution of
petroleum products and (b) to refund in the form of tax credit the excessive mayor’s permit
in the amount of THREE MILLION EIGHT HUNDRED SEVENTY THOUSAND EIGHT
HUDNRED SIXTY PESOS (₱3,870,860.00)
SO ORDERED.
SO ORDERED.9
Petitioners filed a motion for reconsideration against said decision but the same was denied
by the CTA Second Division in a Resolution dated November 21, 2007.
Not satisfied, petitioners filed a Petition for Review praying for the reversal of the Amended
Decision and Resolution of the CTA Second Division.
On January 22, 2009, the CTA En Banc promulgated a Decision affirming in toto the
Amended Decision of the CTA Second Division. The CTA En Banc found no cogent reason
to disturb the findings and conclusions of the CTA Second Division. The dispositive portion
of said Decision reads:
WHEREFORE, the instant Petition for Review is hereby DENIED DUE COURSE and
DISMISSED for lack of merit. Accordingly, the July 31, 2007 Amended Decision and
November 21, 2007 Resolution of the CTA Second Division in CTA AC Case No. 10
entitled, "PILIPINAS SHELL PETROLEUM CORPORATION, petitioner vs. BATANGAS
CITY, BENJAMIN E. PARGAS in his capacity as CITY TREASURER and TEODULFO A.
DEGUITO in his capacity as CITY LEGAL OFFICER OF BATANGAS CITY, [petitioners],"
are hereby AFFIRMED in toto.
SO ORDERED.10
Unfazed, petitioners filed a motion for reconsideration.
In a Resolution dated April 13, 2009, the CTA En Banc denied petitioners’ motion for
reconsideration for lace of merit.
Hence, this petition.
Petitioner raises the following assignment of errors:
1. THE COURT OF TAX APPEALS EN BANC ERRED IN NOT RULING THAT THE
POWER OF LOCAL GOVERNMENT UNITS TO TAX BUSINESS IS SOLELY
GOVERNED BY SEC. 143 AND 143(h) OF THE LOCAL GOVENRMENT CODE OF
1991.
Josef Elvin Campos
2. THE COURT OF TAX APPEALS EN BANC ERRED IN NOT RULING THAT THE
WORD "TAXES" IN SEC. 133(h) DOES NOT INCLUDE BUSINESS TAXES.
3. THE COURT OF TAX APPEALS EN BANC ERRED IN DISREGARDING THE
DISTINCTION BETWEEN TAXES ON ARTICLES AND TAXES ON BUSINESS.
4. THE COURT OF TAX APPEALS EN BANC INCORRECTLY CONSTRUED A
CLEAR PROVISION OF LAW, SPECIFICALLY SECTION 133(h) OF THE LOCAL
GOVERNMENT CODE OF 1991, AS AN EXPRESS LIMITATION ON THE POWER
OF LOCAL GOVENRMENT UNITS TO IMPOSE TAXES ON THE BUSINESS OF
MANUFACTURE AND DISTRIBUTION OF PETROLEUM PRODUCTS.11
In essence, the issue is whether a LGU is empowered under the LGC to impose business
taxes on persons or entities engaged in the business of manufacturing and distribution of
petroleum products.
It its petition, petitioners assert that any activity that involves the production or manufacture
and the distribution or selling of any kind or nature as a means of livelihood or with a view to
profit can be taxed by the LGUs. They posit that the authority granted to them by Section
143(h) of the LGC is so broad that it practically covers any business that the sanggunian
concerned may deem proper to tax, even including businesses which are already subject to
excise, value-added or percentage tax under the National Internal Revenue Code (NIRC)
provided that the same shall not exceed two percent of the gross sales or receipts of the
preceding calendar year.
We do not agree.
At the outset, it must be emphasized that although the power to tax is inherent in the State,
the same is not true for LGUs because although the mandate to impose taxes granted to
LGUs is categorical and long established in the 1987 Philippine Constitution, the same is
not all encompassing as it is subject to limitations as explicitly stated in Section 5, Article X
of the 1987 Constitution, viz.:
SECTION 5. Each local government unit shall have the power to create its own sources of
In the consolidated cases of City of Manila, et al. v. Hon. Colet and Malaysian Airline
system; Maersk-Filipinas, Inc., et al. v. City of Manila, et al,; Eastern Shipping Lines, Inc. v.
City Council of Manila, et al.; William Lines, Inc., et al. v. Regional Trial Court of Manila, et
al.; PNOC Shipping and Transport Corporation v. Hon. Nabong, et al.; Maersk-Filipinas,
Inc., et al. v. City of Manila, et al., and with Intervenors William Lines, Inc., et al.; Cosco
Container Lines and HEUNG-A Shipping Co., Ltd., et al. v. City of Manila; Sulpicio Lines,
Inc. v. Regional Trial Court of Manila, et al.; Association of International Shipping Lines, Inc.
v. City of Manila, et al.; Dongnama Shipping Co., Ltd., et al. v. Court of Appeals, et al., 12 this
Court expounded that the LGUs’ power to tax is subject to the limitations set forth under
Section 133 of the LGC. Thus: It is already well-settled that although the power to tax is
inherent in the State, the same is not true for the LGUs to whom the power must be
delegated by Congress and must be exercised within the guidelines and limitations that
Congress may provide. The Court expounded in Pelizloy Realty Corporation v. The
Province of Benguet that:
The power to tax "is an attribute of sovereignty," and as such, inheres in the State. Such,
however, is not true for provinces, cities, municipalities and barangays as they are not the
sovereign; rather, there are mere "territorial and political subdivisions of the Republic of the
Philippines."
The rule governing the taxing power of provinces, cities, municipalities and barangays is
summarized in Icard v. City Council of Baguio:
It is settled that a municipal corporation unlike a sovereign state is clothed with no inherent
power of taxation. The charter or statute must plainly show an intent to confer that power or
the municipality, cannot assume it. And the power when granted is to be construed in
strictissimi juris. Any doubt or ambiguity arising out of the term used in granting that power
must be resolved against the municipality. Inferences, implication, deductions – all these-
have no place in the interpretation of the taxing power of a municipal corporation.
Therefore, the power of a province to tax is limited to the extent that such power is
delegated to it either by the Constitution or by statute. Section 5, Article X of the 1987
Constitution is clear on this point:
xxxx
Per Section 5, Article X of the 1987 Constitution, "the power to tax is no longer vested
exclusively on Congress; local legislative bodies are now given direct authority to levy
Josef Elvin Campos
taxes, fees and other charges." Nevertheless, such authority is "subject to such guidelines
and limitations as the Congress may provide."
In conformity with Section 3, Article X of the 1987 Constitution, Congress enacted Republic
Act No. 7160, otherwise known as the local Government Code of 1991. Book II of the LGC
governs local taxation and fiscal matters.
Relevant provisions of Book II of the LGC establish the parameters of the taxing powers of
LGUs found below.
First, Section 130 provides for the following fundamental principles governing the taxing
powers of LGUs:
1. Taxation shall be uniform in each LGU.
2. Taxes, fees, charges and other impositions shall:
a. be equitable and based as far as practicable on the taxpayer’s ability to
pay;
b. be levied and collected only for public purposes;
c. not be unjust, excessive, oppressive or confiscatory;
d. not be contrary to law, public policy, national economic policy, or in the
restraint of trade.
3. The collection of local taxes, fees, charges and other impositions shall in no case
be left to any private person.
4. The revenue collected pursuant to the provisions of the LGC shall inure solely to
the benefit of, and be subject to the disposition by, the LGU levying the tax, fee,
charge or other imposition unless otherwise specifically provided by the LGC.
5. Each LGU shall, as far as practicable, evolve a progressive system of taxation.
Second, Section 133 provides for the common limitations on the taxing powers of LGUs.
Among the common limitations on the taxing powers of LGUs under Section 133 of the LGC
is paragraph (h) which states:
SECTION 133. Common Limitations on the Taxing Powers of Local Government Units. –
Unless otherwise provided herein, the exercise of taxing powers of provinces, cities,
municipalities, and barangays shall not extend to the levy of the following:
xxxx
(h) Excise taxes on articles enumerated under the National Internal Revenue Code, as
amended, and taxes, fees or charges on petroleum products.; 13
From the foregoing, Section 133(h) clearly specifies the two kinds of taxes which cannot be
imposed by LGUs: (1) excise taxes on articles enumerated under the NIRC, as amended;
and (2) taxes, fees or charges on petroleum products.
Indisputably, the power of LGUs to impose business taxes derives from Section 143 14 of the
LGC. However, the same is subject to the explicit statutory impediment provided for under
Section 133(h) of the same Code which prohibits LGUs from imposing "taxes, fees or
charges on petroleum products." It can, therefore, be deduced that although petroleum
products are subject to excise tax, the same is specifically excluded from the broad power
granted to LGUs under Section 143(h) of the LGC to impose business taxes.
Additionally, Section 133(h) of the LGC makes plain that the prohibition with respect to
petroleum products extends not only to excise taxes thereon, but all "taxes, fees or
charges." The earlier reference in paragraph 143(h) to excise taxes comprehends a wider
range of subject of taxation: all articles already covered by excise taxation under the NIRC,
such as alcohol products, tobacco products, mineral products, automobiles, and such non-
essential goods as jewelry, goods made of precious metals, perfumes, and yachts and
other vessels intended for pleasure or sports. In contrast, the later reference to "taxes, fees
and charges" pertains only to one class of articles of the many subjects of excise taxes,
specifically, "petroleum products." While LGUs are authorized to burden all such other class
of goods with "taxes, fees and charges," excepting excise taxes, a specific prohibition is
imposed barring the levying of any other type of taxes with respect to petroleum products. 15
It is likewise irrefutable that the specific exemption provided under Section 133 of the LGC
prevails over Section 143 of the same Code.
First, Section 133 of the LGC is a specific provision that explicitly withhold from LGUs the
power to impose taxes, fees and charges on petroleum products.
Strictly speaking, as long as the subject matter of the taxing powers of the LGUs is the
petroleum products per se or even the activity or privilege related to the petroleum products,
such as manufacturing and distribution of said products, it is covered by the said limitation
and thus, no levy can be imposed.16
On the contrary, Section 143 of the LGC defines the general power of LGUs to tax
businesses within its jurisdiction. Thus, the omnibus grant of power to LGUs under Section
143(h)of the LGC cannot overcome the specific exception or exemption in Section 133(h) of
Josef Elvin Campos
the same Code. This is in accord with the rule on statutory construction that specific
provisions must prevail over general ones. A special and specific provision prevails over a
general provision irrespective of their relative positions in the statute. Generalia specialibus
non derogant. Where there is in the same statute a particular enactment and also a general
one which in its most comprehensive sense would include what is embraced in the former,
the particular enactment must be operative, and the general enactment must be taken to
affect only such cases within its general language as are not within the provisions of the
particular enactment.17
Second, Article 232(h) of the Implementing Rules and Regulations (IRR) of the LGC of 1991
states:
ARTICLE 232. Tax on Business.– The Municipality may impose taxes on the following
businesses:
xxxx
(h) On any business not otherwise specified in the preceding paragraphs which the
sanggunian concerned may deem proper to tax provided that that on any business subject
to the excise tax, VAT or percentage tax under the NIRC, as amended, the rate of tax shall
not exceed two percent (2%) of gross sales or receipts of the preceding calendar year and
provided further, that in line with existing national policy, any business engaged in the
production, manufacture, refining, distribution or sale of oil, gasoline, and other petroleum
products shall not be subject to any local tax imposed in this Article. 18
Article 232 defines with more particularity the capacity of a municipality to impose taxes on
businesses. However, it admits of certain exceptions, specifically, that businesses engaged
in the production, manufacture, refining, distribution or sale of oil, gasoline, and other
petroleum products, shall not be subject to any local tax imposed by Article 232.
WHEREFORE, in view of the foregoing, the Court hereby resolves to DENY present
petition. The Decision dated January 22, 2009 and Resolution dated April 13, 2009 of the
Court of Tax Appeals En Banc in CTA EB No. 350 are AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA**
Associate Justice
3. Eminent Domain (Sec. 19, LGC; Sec. 9, Article III, Constitution; Rule 97,
Rules of Court)
LGC Section 19. Eminent Domain. - A local government unit may,
through its chief executive and acting pursuant to an ordinance, exercise
the power of eminent domain for public use, or purpose or welfare for the
benefit of the poor and the landless, upon payment of just compensation,
pursuant to the provisions of the Constitution and pertinent laws:
Provided, however, That the power of eminent domain may not be
exercised unless a valid and definite offer has been previously made to
the owner, and such offer was not accepted: Provided, further, That the
local government unit may immediately take possession of the property
upon the filing of the expropriation proceedings and upon making a
deposit with the proper court of at least fifteen percent (15%) of the fair
market value of the property based on the current tax declaration of the
property to be expropriated: Provided, finally, That, the amount to be paid
for the expropriated property shall be determined by the proper court,
based on the fair market value at the time of the taking of the property.
Constitution, Art. III SECTION 9. Private property shall not be taken for
public use without just compensation.
ROC RULE 97
Termination of Guardianship
Section 1. Petition that competency of ward be adjudged, and
proceedings thereupon. — A person who has been declared incompetent
for any reason, or his guardian, relative, or friend, may petition the court to
have his present competency judicially determined. The petition shall be
verified by oath, and shall state that such person is then competent. Upon
Josef Elvin Campos
receiving the petition, the court shall fix a time for hearing the questions
raised thereby, and cause reasonable notice thereof to be given to the
guardian of the person so declared incompetent, and to the ward. On the
trial, the guardian or relatives of the ward, and, in the discretion of the
court, any other person, may contest the right to the relief demanded, and
witnesses may be called and examined by the parties or by the court on
its own motion. If it be found that the person is no longer incompetent, his
competency shall be adjudged and the guardianship shall cease.
Section 2. When the guardian removed or allowed to resign. New
appointment. — When a guardian becomes insane or otherwise incapable
of discharging his trust or unsuitable therefor, or has wasted or
mismanaged the estate, or failed for thirty (30) days after it is due to
render an account or make a return, the court may, upon reasonable
notice to the guardian, remove him, and compel him to surrender the
estate of the ward to the person found to be lawfully entitled thereto. A
guardian may resign when it appears proper to allow the same; and upon
his resignation or removal the court may appoint another in his place.
Section 3. Other termination of guardianship. — The marriage or
voluntary emancipation of a minor ward terminates the guardianship of the
peson of the ward, and shall enable the minor to administer his property
as though he were of age, but he cannot borrow the money or alienate or
encumber real property without the consent of his father or mother, or
guardian. He can sue and be sued in court only with the assistance of his
father, mother or guardian. The guardian of any person may be
discharged by the court when it appears, upon the application of the ward
or otherwise, that the guardianship is no longer necessary.
Section 4. Record to be kept by the justice of the peace or municipal
judge. — When a justice of the peace or municipal court takes cognizance
of the proceedings in pursuance of the provisions of these rules, the
record of the proceedings shall be kept as in the Court of First Instance.
Section 5. Service of judgment. — Final orders of judgments under this
rule shall be served upon the civil registrar of the municipality or city
where the minor or incompetent person resides or where his property or
part thereof is situated.
Cases:
City Gov. of Quezon City v. Ericta (G.R. No. L-34915, 24 June 1983)
G.R. No. L-34915 June 24, 1983
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON
CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal,
Quezon City, Branch XVIII; HIMLAYANG PILIPINO, INC., respondents.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.
GUTIERREZ, JR., J.:
This is a petition for review which seeks the reversal of the decision of the Court of First
Instance of Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the
Quezon City Council null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE
ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE
CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND
PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:
Sec. 9. At least six (6) percent of the total area of the memorial park cemetery
shall be set aside for charity burial of deceased persons who are paupers and
have been residents of Quezon City for at least 5 years prior to their death, to
be determined by competent City Authorities. The area so designated shall
immediately be developed and should be open for operation not later than six
months from the date of approval of the application.
Josef Elvin Campos
For several years, the aforequoted section of the Ordinance was not enforced by city
authorities but seven years after the enactment of the ordinance, the Quezon City Council
passed the following resolution:
RESOLVED by the council of Quezon assembled, to request, as it does
hereby request the City Engineer, Quezon City, to stop any further selling
and/or transaction of memorial park lots in Quezon City where the owners
thereof have failed to donate the required 6% space intended for paupers
burial.
Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino,
Inc. in writing that Section 9 of Ordinance No. 6118, S-64 would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal
Branch XVIII at Quezon City, a petition for declaratory relief, prohibition and mandamus with
preliminary injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance
in question The respondent alleged that the same is contrary to the Constitution, the
Quezon City Charter, the Local Autonomy Act, and the Revised Administrative Code.
There being no issue of fact and the questions raised being purely legal both petitioners and
respondent agreed to the rendition of a judgment on the pleadings. The respondent court,
therefore, rendered the decision declaring Section 9 of Ordinance No. 6118, S-64 null and
void.
A motion for reconsideration having been denied, the City Government and City Council
filed the instant petition.
Petitioners argue that the taking of the respondent's property is a valid and reasonable
exercise of police power and that the land is taken for a public use as it is intended for the
burial ground of paupers. They further argue that the Quezon City Council is authorized
under its charter, in the exercise of local police power, " to make such further ordinances
and resolutions not repugnant to law as may be necessary to carry into effect and discharge
the powers and duties conferred by this Act and such as it shall deem necessary and proper
to provide for the health and safety, promote the prosperity, improve the morals, peace,
good order, comfort and convenience of the city and the inhabitants thereof, and for the
protection of property therein."
On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or
confiscation of property is obvious because the questioned ordinance permanently restricts
the use of the property such that it cannot be used for any reasonable purpose and deprives
the owner of all beneficial use of his property.
The respondent also stresses that the general welfare clause is not available as a source of
power for the taking of the property in this case because it refers to "the power of promoting
the public welfare by restraining and regulating the use of liberty and property." The
respondent points out that if an owner is deprived of his property outright under the State's
police power, the property is generally not taken for public use but is urgently and
summarily destroyed in order to promote the general welfare. The respondent cites the case
of a nuisance per se or the destruction of a house to prevent the spread of a conflagration.
We find the stand of the private respondent as well as the decision of the respondent Judge
to be well-founded. We quote with approval the lower court's ruling which declared null and
void Section 9 of the questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid exercise of the
police power?
An examination of the Charter of Quezon City (Rep. Act No. 537), does not
reveal any provision that would justify the ordinance in question except the
provision granting police power to the City. Section 9 cannot be justified
under the power granted to Quezon City to tax, fix the license fee,
and regulate such other business, trades, and occupation as may be
established or practised in the City.' (Subsections 'C', Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit (People vs.
Esguerra, 81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12,
1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not
include the power to confiscate. The ordinance in question not only
confiscates but also prohibits the operation of a memorial park cemetery,
because under Section 13 of said ordinance, 'Violation of the provision
thereof is punishable with a fine and/or imprisonment and that upon
conviction thereof the permit to operate and maintain a private cemetery shall
be revoked or cancelled.' The confiscatory clause and the penal provision in
effect deter one from operating a memorial park cemetery. Neither can the
Josef Elvin Campos
ordinance in question be justified under subsection "t", Section 12 of
Republic Act 537 which authorizes the City Council to-
'prohibit the burial of the dead within the center of population of
the city and provide for their burial in such proper place and in
such manner as the council may determine, subject to the
provisions of the general law regulating burial grounds and
cemeteries and governing funerals and disposal of the dead.'
(Sub-sec. (t), Sec. 12, Rep. Act No. 537).
There is nothing in the above provision which authorizes confiscation or as
euphemistically termed by the respondents, 'donation'
We now come to the question whether or not Section 9 of the ordinance in
question is a valid exercise of police power. The police power of Quezon City
is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows:
(00) To make such further ordinance and regulations not
repugnant to law as may be necessary to carry into effect and
discharge the powers and duties conferred by this act and such
as it shall deem necessary and proper to provide for the health
and safety, promote, the prosperity, improve the morals, peace,
good order, comfort and convenience of the city and the
inhabitants thereof, and for the protection of property therein;
and enforce obedience thereto with such lawful fines or
penalties as the City Council may prescribe under the
provisions of subsection (jj) of this section.
We start the discussion with a restatement of certain basic principles.
Occupying the forefront in the bill of rights is the provision which states that
'no person shall be deprived of life, liberty or property without due process of
law' (Art. Ill, Section 1 subparagraph 1, Constitution).
On the other hand, there are three inherent powers of government by which
the state interferes with the property rights, namely-. (1) police power, (2)
eminent domain, (3) taxation. These are said to exist independently of the
Constitution as necessary attributes of sovereignty.
Police power is defined by Freund as 'the power of promoting the public
welfare by restraining and regulating the use of liberty and property' (Quoted
in Political Law by Tanada and Carreon, V-11, p. 50). It is usually exerted in
order to merely regulate the use and enjoyment of property of the owner. If he
is deprived of his property outright, it is not taken for public use but rather to
destroy in order to promote the general welfare. In police power, the owner
does not recover from the government for injury sustained in consequence
thereof (12 C.J. 623). It has been said that police power is the most essential
of government powers, at times the most insistent, and always one of the
least limitable of the powers of government (Ruby vs. Provincial Board, 39
PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power
embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10
PhiL 104). The Supreme Court has said that police power is so far-reaching
in scope that it has almost become impossible to limit its sweep. As it derives
its existence from the very existence of the state itself, it does not need to be
expressed or defined in its scope. Being coextensive with self-preservation
and survival itself, it is the most positive and active of all governmental
processes, the most essential insistent and illimitable Especially it is so under
the modern democratic framework where the demands of society and nations
have multiplied to almost unimaginable proportions. The field and scope of
police power have become almost boundless, just as the fields of public
interest and public welfare have become almost all embracing and have
transcended human foresight. Since the Courts cannot foresee the needs and
demands of public interest and welfare, they cannot delimit beforehand the
extent or scope of the police power by which and through which the state
seeks to attain or achieve public interest and welfare. (Ichong vs. Hernandez,
L-7995, May 31, 1957).
The police power being the most active power of the government and the due
process clause being the broadest station on governmental power, the
conflict between this power of government and the due process clause of the
Constitution is oftentimes inevitable.
Josef Elvin Campos
It will be seen from the foregoing authorities that police power is usually
exercised in the form of mere regulation or restriction in the use of liberty or
property for the promotion of the general welfare. It does not involve the
taking or confiscation of property with the exception of a few cases where
there is a necessity to confiscate private property in order to destroy it for the
purpose of protecting the peace and order and of promoting the general
welfare as for instance, the confiscation of an illegally possessed article, such
as opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of
Quezon City is not a mere police regulation but an outright confiscation. It
deprives a person of his private property without due process of law, nay,
even without compensation.
In sustaining the decision of the respondent court, we are not unmindful of the heavy
burden shouldered by whoever challenges the validity of duly enacted legislation whether
national or local As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250)
that the courts resolve every presumption in favor of validity and, more so, where the ma
corporation asserts that the ordinance was enacted to promote the common good and
general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City
Mayor of Manila (20 SCRA 849) the Court speaking through the then Associate Justice and
now Chief Justice Enrique M. Fernando stated
Primarily what calls for a reversal of such a decision is the a of any evidence
to offset the presumption of validity that attaches to a statute or ordinance. As
was expressed categorically by Justice Malcolm 'The presumption is all in
favor of validity. ... The action of the elected representatives of the people
cannot be lightly set aside. The councilors must, in the very nature of things,
be familiar with the necessities of their particular ... municipality and with all
the facts and lances which surround the subject and necessitate action. The
local legislative body, by enacting the ordinance, has in effect given notice
that the regulations are essential to the well-being of the people. ... The
Judiciary should not lightly set aside legislative action when there is not a
clear invasion of personal or property rights under the guise of police
regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an
affirmation of the presumption of validity of municipal ordinance as
announced in the leading Salaveria decision in Ebona v. Daet, [1950]85 Phil.
369.)
We have likewise considered the principles earlier stated in Case v. Board of
Health supra :
... Under the provisions of municipal charters which are known as the general
welfare clauses, a city, by virtue of its police power, may adopt ordinances to
the peace, safety, health, morals and the best and highest interests of the
municipality. It is a well-settled principle, growing out of the nature of well-
ordered and society, that every holder of property, however absolute and may
be his title, holds it under the implied liability that his use of it shall not be
injurious to the equal enjoyment of others having an equal right to the
enjoyment of their property, nor injurious to the rights of the community. An
property in the state is held subject to its general regulations, which are
necessary to the common good and general welfare. Rights of property, like
all other social and conventional rights, are subject to such reasonable
limitations in their enjoyment as shall prevent them from being injurious, and
to such reasonable restraints and regulations, established by law, as the
legislature, under the governing and controlling power vested in them by the
constitution, may think necessary and expedient. The state, under the police
power, is possessed with plenary power to deal with all matters relating to the
general health, morals, and safety of the people, so long as it does not
contravene any positive inhibition of the organic law and providing that such
power is not exercised in such a manner as to justify the interference of the
courts to prevent positive wrong and oppression.
but find them not applicable to the facts of this case.
There is no reasonable relation between the setting aside of at least six (6) percent of the
total area of an private cemeteries for charity burial grounds of deceased paupers and the
promotion of health, morals, good order, safety, or the general welfare of the people. The
ordinance is actually a taking without compensation of a certain area from a private
Josef Elvin Campos
cemetery to benefit paupers who are charges of the municipal corporation. Instead of
building or maintaining a public cemetery for this purpose, the city passes the burden to
private cemeteries.
The expropriation without compensation of a portion of private cemeteries is not covered by
Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the
city council to prohibit the burial of the dead within the center of population of the city and to
provide for their burial in a proper place subject to the provisions of general law regulating
burial grounds and cemeteries. When the Local Government Code, Batas Pambansa Blg.
337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial
of the dead in such place and in such manner as prescribed by law or ordinance" it simply
authorizes the city to provide its own city owned land or to buy or expropriate private
properties to construct public cemeteries. This has been the law and practise in the past. It
continues to the present. Expropriation, however, requires payment of just compensation.
The questioned ordinance is different from laws and regulations requiring owners of
subdivisions to set aside certain areas for streets, parks, playgrounds, and other public
facilities from the land they sell to buyers of subdivision lots. The necessities of public
safety, health, and convenience are very clear from said requirements which are intended to
insure the development of communities with salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when
individual lots are sold to home-owners.
As a matter of fact, the petitioners rely solely on the general welfare clause or on implied
powers of the municipal corporation, not on any express provision of law as statutory basis
of their exercise of power. The clause has always received broad and liberal interpretation
but we cannot stretch it to cover this particular taking. Moreover, the questioned ordinance
was passed after Himlayang Pilipino, Inc. had incorporated. received necessary licenses
and permits and commenced operating. The sequestration of six percent of the cemetery
cannot even be considered as having been impliedly acknowledged by the private
respondent when it accepted the permits to commence operations.
WHEREFORE, the petition for review is hereby DISMISSED. The decision of the
respondent court is affirmed.
SO ORDERED.
City of Cebu v. Spouses Apolonio (G.R. No. 142971, 07 May 2002)

G.R. No. 142971 May 7, 2002
THE CITY OF CEBU, petitioner,
vs.
SPOUSES APOLONIO and BLASA DEDAMO, respondents.
DAVIDE, JR., C.J.:
In its petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure,
petitioner City of Cebu assails the decision of 11 October 1999 of the Court of Appeals in
CA-G.R. CV No. 592041 affirming the judgment of 7 May 1996 of the Regional Trial Court,
Branch 13, Cebu City, in Civil Case No. CEB-14632, a case for eminent domain, which
fixed the valuation of the land subject thereof on the basis of the recommendation of the
commissioners appointed by it.
The material operation facts are not disputed.
On 17 September 1993, petitioner City of Cebu filed in Civil Case No. CEB-14632 a
complaint for eminent domain against respondents spouses Apolonio and Blasa Dedamo.
The petitioner alleged therein that it needed the following parcels of land of respondents, to
wit:
Lot No. 1527
Area-------------------------------------------- 1,146 square
---- meters
Tax 03472
Declaration----------------------------------
Title No. 31833
------------------------------------------
Market P240,660.00
value-------------------------------------
Assessed P72,200.00
Josef Elvin Campos
Value----------------------------------

Lot No. 1528
Area-------------------------------------------- 793 square
---- meters
Area sought to be expropriated 478 square
---------------- meters
Tax Declaration 03450
-----------------------------------
Title No. 31832
--------------------------------------------
Market value for the whole lot P1,666,530.00
------------------
Market value of the Area to be P100,380.00
expropriated --
Assessed Value P49,960.00
------------------------------------
for a public purpose, i.e., for the construction of a public road which shall serve as an
access/relief road of Gorordo Avenue to extend to the General Maxilum Avenue and the
back of Magellan International Hotel Roads in Cebu City. The lots are the most suitable site
for the purpose. The total area sought to be expropriated is 1,624 square meters with an
assessed value of P1,786.400. Petitioner deposited with the Philippine National Bank the
amount of P51,156 representing 15% of the fair market value of the property to enable the
petitioner to take immediate possession of the property pursuant to Section 19 of R.A. No.
7160.2
Respondents, filed a motion to dismiss the complaint because the purpose for which their
property was to be expropriated was not for a public purpose but for benefit of a single
private entity, the Cebu Holdings, Inc. Petitioner could simply buy directly from them the
property at its fair market value if it wanted to, just like what it did with the neighboring lots.
Besides, the price offered was very low in light of the consideration of P20,000 per square
meter, more or less, which petitioner paid to the neighboring lots. Finally, respondents
alleged that they have no other land in Cebu City.
A pre-trial was thereafter had.
On 23 August 1994, petitioner filed a motion for the issuance of a writ of possession
pursuant to Section 19 of R.A. No. 7160. The motion was granted by the trial court on 21
September 1994.3
On 14 December 1994, the parties executed and submitted to the trial court an
Agreement4 wherein they declared that they have partially settled the case and in
consideration thereof they agreed:
1. That the SECOND PARTY hereby conforms to the intention to [sic] the FIRST
PARTY in expropriating their parcels of land in the above-cited case as for public
purpose and for the benefit of the general public;
2. That the SECOND PARTY agrees to part with the ownership of the subject
parcels of land in favor of the FIRST PARTY provided the latter will pay just
compensation for the same in the amount determined by the court after due notice
and hearing;
3. That in the meantime the SECOND PARTY agrees to receive the amount of ONE
MILLION SEVEN HUNDRED EIGHTY SIX THOUSAND FOUR HUNDRED PESOS
(1,786,400.00) as provisional payment for the subject parcels of land, without
prejudice to the final valuation as maybe determined by the court;
4. That the FIRST PARTY in the light of the issuance of the Writ of Possession Order
dated September 21, 1994 issued by the Honorable Court, agreed to take
possession over that portion of the lot sought to be expropriated where the house of
the SECOND PARTY was located only after fifteen (15) days upon the receipt of the
SECOND PARTY of the amount of P1,786,400.00;
Josef Elvin Campos
5. That the SECOND PARTY upon receipt of the aforesaid provisional amount, shall
turn over to the FIRST PARTY the title of the lot and within the lapse of the fifteen
(15) days grace period will voluntarily demolish their house and the other structure
that may be located thereon at their own expense;
6. That the FIRST PARTY and the SECOND PARTY jointly petition the Honorable
Court to render judgment in said Civil Case No. CEB-14632 in accordance with this
AGREEMENT;
7. That the judgment sought to be rendered under this agreement shall be followed
by a supplemental judgment fixing the just compensation for the property of the
SECOND PARTY after the Commissioners appointed by this Honorable Court to
determine the same shall have rendered their report and approved by the court.
Pursuant to said agreement, the trial court appointed three commissioners to determine the
just compensation of the lots sought to be expropriated. The commissioners were Palermo
M. Lugo, who was nominated by petitioner and who was designated as Chairman; Alfredo
Cisneros, who was nominated by respondents; and Herbert E. Buot, who was designated
by the trial court. The parties agreed to their appointment.
Thereafter, the commissioners submitted their report, which contained their respective
assessments of and recommendation as to the valuation of the property.1âwphi1.nêt
On the basis of the commissioners' report and after due deliberation thereon, the trial court
rendered its decision on 7 May 1996,5 the decretal portion o which reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in accordance
with the report of the commissioners.
Plaintiff is directed to pay Spouses Apolonio S. Dedamo and Blasa Dedamo the sum
of pesos: TWENTY FOUR MILLION EIGHT HUNDRED SIXTY-FIVE THOUSAND
AND NINE HUNDRED THIRTY (P24,865.930.00) representing the compensation
mentioned in the Complaint.
Plaintiff and defendants are directed to pay the following commissioner's fee;
1. To Palermo Lugo - P21,000.00
2. To Herbert Buot - P19,000.00
3. To Alfredo Cisneros - P19,000.00
Without pronouncement as to cost.
SO ORDERED.
Petitioner filed a motion for reconsideration on the ground that the commissioners' report
was inaccurate since it included an area which was not subject to expropriation. More
specifically, it contended that Lot No. 1528 contains 793 square meters but the actual area
to be expropriated is only 478 square meters. The remaining 315 square meters is the
subject of a separate expropriation proceeding in Civil Case No. CEB-8348, then pending
before Branch 9 of the Regional Trial Court of Cebu City.
On 16 August 1996, the commissioners submitted an amended assessment for the 478
square meters of Lot No. 1528 and fixed it at P12,824.10 per square meter, or in the
amount of P20,826,339.50. The assessment was approved as the just compensation
thereof by the trial court in its Order of 27 December 1996. 6 Accordingly, the dispositive
portion of the decision was amended to reflect the new valuation.
Petitioner elevated the case to the Court of Appeals, which docketed the case as CA-G.R.
CV No. 59204. Petitioner alleged that the lower court erred in fixing the amount of just
compensation at P20,826,339.50. The just compensation should be based on the prevailing
market price of the property at the commencement of the expropriation proceedings.
The petitioner did not convince the Court of Appeals. In its decision of 11 October
1999,7 the Court of Appeals affirmed in toto the decision of the trial court.
Still unsatisfied, petitioner filed with us the petition for review in the case at bar. It raises the
sole issue of whether just compensation should be determined as of the date of the filing of
the complaint. It asserts that it should be, which in this case should be 17 September 1993
and not at the time the property was actually taken in 1994, pursuant to the decision in
"National Power Corporation vs. Court of Appeals."8
In their Comment, respondents maintain that the Court of Appeals did not err in affirming
the decision of the trial court because (1) the trial court decided the case on the basis of the
agreement of the parties that just compensation shall be fixed by commissioners appointed
by the court; (2) petitioner did not interpose any serious objection to the commissioners'
report of 12 August 1996 fixing the just compensation of the 1,624-square meter lot at
P20,826,339.50; hence, it was estopped from attacking the report on which the decision
Josef Elvin Campos
was based; and (3) the determined just compensation fixed is even lower than the actual
value of the property at the time of the actual taking in 1994.
Eminent domain is a fundamental State power that is inseparable from sovereignty. It is the
Government's right to appropriate, in the nature of a compulsory sale to the State, private
property for public use or purpose. 9 However, the Government must pay the owner thereof
just compensation as consideration therefor.
In the case at bar, the applicable law as to the point of reckoning for the determination of
just compensation is Section 19 of R.A. No. 7160, which expressly provides that just
compensation shall be determined as of the time of actual taking. The Section reads as
follows:
SECTION 19. Eminent Domain. – A local government unit may, through its chief
executive and acting pursuant to an ordinance, exercise the power of eminent
domain for public use, or purpose or welfare for the benefit of the poor and the
landless, upon payment of just compensation, pursuant to the provisions of the
Constitution and pertinent laws: Provided, however, That the power of eminent
domain may not be exercised unless a valid and definite offer has been previously
made to the owner, and such offer was not accepted: Provided, further, That the
local government unit may immediately take possession of the property upon the
filing of the expropriation proceedings and upon making a deposit with the proper
court of at least fifteen percent (15%) of the fair market value of the property based
on the current tax declaration of the property to be expropriated: Provided finally,
That, the amount to be paid for the expropriated property shall be determined by the
proper court, based on the fair market value at the time of the taking of the property.
The petitioner has misread our ruling in The National Power Corp. vs. Court of
Appeals.10 We did not categorically rule in that case that just compensation should be
determined as of the filing of the complaint. We explicitly stated therein that although the
general rule in determining just compensation in eminent domain is the value of the property
as of the date of the filing of the complaint, the rule "admits of an exception: where this
Court fixed the value of the property as of the date it was taken and not at the date of the
commencement of the expropriation proceedings."
Also, the trial court followed the then governing procedural law on the matter, which was
Section 5 of Rule 67 of the Rules of Court, which provided as follows:
SEC. 5. Ascertainment of compensation. – Upon the entry of the order of
condemnation, the court shall appoint not more than three (3) competent and
disinterested persons as commissioners to ascertain and report to the court the just
compensation for the property sought to be taken. The order of appointment shall
designate the time and place of the first session of the hearing to be held by the
commissioners and specify the time within which their report is to be filed with the
court.
More than anything else, the parties, by a solemn document freely and voluntarily agreed
upon by them, agreed to be bound by the report of the commission and approved by the
trial court. The agreement is a contract between the parties. It has the force of law between
them and should be complied with in good faith. Article 1159 and 1315 of the Civil Code
explicitly provides:
Art. 1159. Obligations arising from contracts have the force of law between the
contracting parties and should be complied with in good faith.
Art. 1315. Contracts are perfected by mere consent, and from that moment the
parties are bound not only to the fulfillment of what has been expressly stipulated but
also to all the consequences which, according to their nature, may be in keeping with
good faith, usage and law.
Furthermore, during the hearing on 22 November 1996, petitioner did not interpose a
serious objection.11 It is therefore too late for petitioner to question the valuation now without
violating the principle of equitable estoppel. Estoppel in pais arises when one, by his acts,
representations or admissions, or by his own silence when he ought to speak out,
intentionally or through culpable negligence, induces another to believe certain facts to exist
and such other rightfully relies and acts on such belief, so that he will be prejudiced if the
former is permitted to deny the existence of such facts. 12 Records show that petitioner
consented to conform with the valuation recommended by the commissioners. It cannot
detract from its agreement now and assail correctness of the commissioners'
assessment.1âwphi1.nêt
Finally, while Section 4, Rule 67 of the Rules of Court provides that just compensation shall
be determined at the time of the filing of the complaint for expropriation, 13 such law cannot
prevail over R.A. 7160, which is a substantive law. 14
Josef Elvin Campos
WHEREFORE, finding no reversible error in the assailed judgment on the Court of Appeals
in CA-G.R. CV No. 59204, the petition in this case is hereby DENIED.
SO ORDERED.
Puno, Kapunan, Ynares-Santiago, De Leon, Jr., and Austria-Martinez, JJ., concur.
Republic v. Court of Appeals (G.R. No. 146587, 02 July 2002)

G.R. No. 146587 July 2, 2002
REPUBLIC OF THE PHILIPPINES, represented by the General Manager of the
PHILIPPINE INFORMATION AGENCY (PIA), petitioner,
vs.
THE HONORABLE COURT OF APPEALS and the HEIRS OF LUIS SANTOS as herein
represented by DR. SABINO SANTOS and PURIFICACION SANTOS
IMPERIAL, respondents.
DECISION
VITUG, J.:
Petitioner instituted expropriation proceedings on 19 September 1969 before the Regional
Trial Court ("RTC") of Bulacan, docketed Civil Cases No. 3839-M, No. 3840-M, No. 3841-M
and No. 3842-M, covering a total of 544,980 square meters of contiguous land situated
along MacArthur Highway, Malolos, Bulacan, to be utilized for the continued broadcast
operation and use of radio transmitter facilities for the "Voice of the Philippines" project.
Petitioner, through the Philippine Information Agency ("PIA"), took over the premises after
the previous lessee, the "Voice of America," had ceased its operations thereat. Petitioner
made a deposit of P517,558.80, the sum provisionally fixed as being the reasonable value
of the property. On 26 February 1979, or more than nine years after the institution of the
expropriation proceedings, the trial court issued this order -
"WHEREFORE, premises considered, judgment is hereby rendered:
"Condemning the properties of the defendants in Civil Cases Nos. 3839-M to 3842-M
located at KM 43, MacArthur Highway, Malolos, Bulacan and covered by several transfer
certificates of title appearing in the Commissioners’ Appraisal Report consisting of the total
area of 544,980 square meters, as indicated in plan, Exhibit A, for plaintiff, also marked as
Exhibit I for the defendants, and as Appendix ‘A’ attached to the Commissioners’ Appraisal
Report, for the purpose stated by the plaintiff in its complaint;
"Ordering the plaintiff to pay the defendants the just compensation for said property which is
the fair market value of the land condemned, computed at the rate of six pesos (P6.00) per
square meter, with legal rate of interest from September 19, 1969, until fully paid; and
"Ordering the plaintiff to pay the costs of suit, which includes the aforesaid fees of
commissioners, Atty. Victorino P. Evangelista and Mr. Pablo Domingo." 1
The bone of contention in the instant controversy is the 76,589-square meter property
previously owned by Luis Santos, predecessor-in-interest of herein respondents, which
forms part of the expropriated area.
It would appear that the national government failed to pay to herein respondents the
compensation pursuant to the foregoing decision, such that a little over five years later, or
on 09 May 1984, respondents filed a manifestation with a motion seeking payment for the
expropriated property. On 07 June 1984, the Bulacan RTC, after ascertaining that the heirs
remained unpaid in the sum of P1,058,655.05, issued a writ of execution served on the
plaintiff, through the Office of the Solicitor General, for the implementation thereof. When
the order was not complied with, respondents again filed a motion urging the trial court to
direct the provincial treasurer of Bulacan to release to them the amount of P72,683.55, a
portion of the sum deposited by petitioner at the inception of the expropriation proceedings
in 1969, corresponding to their share of the deposit. The trial court, in its order of 10 July
1984, granted the motion.
In the meantime, President Joseph Ejercito Estrada issued Proclamation No.
22,2 transferring 20 hectares of the expropriated property to the Bulacan State University for
the expansion of its facilities and another 5 hectares to be used exclusively for the
propagation of the Philippine carabao. The remaining portion was retained by the PIA. This
fact notwithstanding, and despite the 1984 court order, the Santos heirs remained unpaid,
and no action was taken on their case until 16 September 1999 when petitioner filed its
manifestation and motion to permit the deposit in court of the amount of P4,664,000.00 by
way of just compensation for the expropriated property of the late Luis Santos subject to
such final computation as might be approved by the court. This time, the Santos heirs,
opposing the manifestation and motion, submitted a counter-motion to adjust the
compensation from P6.00 per square meter previously fixed in the 1979 decision to its
Josef Elvin Campos
current zonal valuation pegged at P5,000.00 per square meter or, in the alternative, to
cause the return to them of the expropriated property. On 01 March 2000, the Bulacan RTC
ruled in favor of respondents and issued the assailed order, vacating its decision of 26
February 1979 and declaring it to be unenforceable on the ground of prescription -
"WHEREFORE, premises considered, the court hereby:
"1) declares the decision rendered by this Court on February 26, 1979 no longer
enforceable, execution of the same by either a motion or an independent action
having already prescribed in accordance with Section 6, Rule 39 of both the 1964
Revised Rules of Court and the 1997 Rules of Civil Procedure;
"2) denies the plaintiff’s Manifestation and Motion to Permit Plaintiff to Deposit in
Court Payment for Expropriated Properties dated September 16, 1999 for the reason
stated in the next preceding paragraph hereof; and
"3) orders the return of the expropriated property of the late defendant Luis Santos to
his heirs conformably with the ruling of the Supreme Court in Government of
Sorsogon vs. Vda. De Villaroya, 153 SCRA 291, without prejudice to any case which
the parties may deem appropriate to institute in relation with the amount already paid
to herein oppositors and the purported transfer of a portion of the said realty to the
Bulacan State University pursuant to Proclamation No. 22 issued by President
Joseph Ejercito."3
Petitioner brought the matter up to the Court of Appeals but the petition was outrightly
denied. It would appear that the denial was based on Section 4, Rule 65, of the 1997 Rules
of Civil Procedure which provided that the filing of a motion for reconsideration in due time
after filing of the judgment, order or resolution interrupted the running of the sixty-day period
within which to file a petition for certiorari; and that if a motion for reconsideration was
denied, the aggrieved party could file the petition only within the remaining period, but which
should not be less than five days in any event, reckoned from the notice of such denial. The
reglementary period, however, was later modified by A.M. No. 00-2-03 S.C., now reading
thusly:
"Sec. 4. When and where petition filed. --- The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or resolution. In case a motion for reconsideration
or new trial is timely filed, whether such motion is required or not, the sixty (60) day period
shall be counted from notice of the denial of said motion."
The amendatory provision, being curative in nature, should be made applicable to all cases
still pending with the courts at the time of its effectivity.
In Narzoles vs. NLRC,4 the Court has said:
"The Court has observed that Circular No. 39-98 has generated tremendous confusion
resulting in the dismissal of numerous cases for late filing. This may have been because,
historically, i.e., even before the 1997 revision to the Rules of Civil Procedure, a party had a
fresh period from receipt of the order denying the motion for reconsideration to file a petition
for certiorari. Were it not for the amendments brought about by Circular No. 39-98, the
cases so dismissed would have been resolved on the merits. Hence, the Court deemed it
wise to revert to the old rule allowing a party a fresh 60-day period from notice of the denial
of the motion for reconsideration to file a petition for certiorari. x x x
"The latest amendments took effect on September 1, 2000, following its publication in the
Manila Bulletin on August 4, 2000 and in the Philippine Daily Inquirer on August 7, 2000,
two newspapers of general circulation.
"In view of its purpose, the Resolution further amending Section 4, Rule 65, can only be
described as curative in nature, and the principles governing curative statutes are
applicable.
"Curative statutes are enacted to cure defects in a prior law or to validate legal proceedings
which would otherwise be void for want of conformity with certain legal requirements.
(Erectors, Inc. vs. National Labor Relations Commission, 256 SCRA 629 [1996].) They are
intended to supply defects, abridge superfluities and curb certain evils. They are intended to
enable persons to carry into effect that which they have designed or intended, but has failed
of expected legal consequence by reason of some statutory disability or irregularity in their
own action. They make valid that which, before the enactment of the statute was invalid.
Their purpose is to give validity to acts done that would have been invalid under existing
laws, as if existing laws have been complied with. (Batong Buhay Gold Mines, Inc. vs. Dela
Serna, 312 SCRA 22 [1999].) Curative statutes, therefore, by their very essence, are
retroactive. (Municipality of San Narciso, Quezon vs. Mendez, Sr., 239 SCRA 11 [1994].)" 5
At all events, petitioner has a valid point in emphasizing the "public nature" of the
expropriated property. The petition being imbued with public interest, the Court has resolved
to give it due course and to decide the case on its merits.
Josef Elvin Campos
Assailing the finding of prescription by the trial court, petitioner here posited that a motion
which respondents had filed on 17 February 1984, followed up by other motions subsequent
thereto, was made within the reglementary period that thereby interrupted the 5-year
prescriptive period within which to enforce the 1979 judgment. Furthermore, petitioner
claimed, the receipt by respondents of partial compensation in the sum of P72,683.55 on 23
July 1984 constituted partial compliance on the part of petitioners and effectively estopped
respondents from invoking prescription expressed in Section 6, Rule 39, of the Rules of
Court.6
In opposing the petition, respondents advanced the view that pursuant to Section 6, Rule
39, of the Rules of Court, the failure of petitioner to execute the judgment, dated 26
February 1979, within five years after it had become final and executory, rendered it
unenforceable by mere motion. The motion for payment, dated 09 May 1984, as well as the
subsequent disbursement to them of the sum of P72,683.55 by the provincial treasurer of
Bulacan, could not be considered as having interrupted the five-year period, since a motion,
to be considered otherwise, should instead be made by the prevailing party, in this case by
petitioner. Respondents maintained that the P72,683.55 paid to them by the provincial
treasurer of Bulacan pursuant to the 1984 order of the trial court was part of the initial
deposit made by petitioner when it first entered possession of the property in 1969 and
should not be so regarded as a partial payment. Respondents further questioned the right of
PIA to transfer ownership of a portion of the property to the Bulacan State University even
while the just compensation due the heirs had yet to be finally settled.
The right of eminent domain is usually understood to be an ultimate right of the sovereign
power to appropriate any property within its territorial sovereignty for a public
purpose.7 Fundamental to the independent existence of a State, it requires no recognition by
the Constitution, whose provisions are taken as being merely confirmatory of its presence
and as being regulatory, at most, in the due exercise of the power. In the hands of the
legislature, the power is inherent, its scope matching that of taxation, even that of police
power itself, in many respects. It reaches to every form of property the State needs for
public use and, as an old case so puts it, all separate interests of individuals in property are
held under a tacit agreement or implied reservation vesting upon the sovereign the right to
resume the possession of the property whenever the public interest so requires it. 8
The ubiquitous character of eminent domain is manifest in the nature of the expropriation
proceedings. Expropriation proceedings are not adversarial in the conventional sense, for
the condemning authority is not required to assert any conflicting interest in the property.
Thus, by filing the action, the condemnor in effect merely serves notice that it is taking title
and possession of the property, and the defendant asserts title or interest in the property,
not to prove a right to possession, but to prove a right to compensation for the taking. 9
Obviously, however, the power is not without its limits: first, the taking must be for public
use, and second, that just compensation must be given to the private owner of the
property.10 These twin proscriptions have their origin in the recognition of the necessity for
achieving balance between the State interests, on the one hand, and private rights, upon
the other hand, by effectively restraining the former and affording protection to the latter. 11 In
determining "public use," two approaches are utilized - the first is public employment or the
actual use by the public, and the second is public advantage or benefit.12 It is also useful to
view the matter as being subject to constant growth, which is to say that as society
advances, its demands upon the individual so increases, and each demand is a new use to
which the resources of the individual may be devoted. 13
The expropriated property has been shown to be for the continued utilization by the PIA, a
significant portion thereof being ceded for the expansion of the facilities of the Bulacan
State University and for the propagation of the Philippine carabao, themselves in line with
the requirements of public purpose. Respondents question the public nature of the
utilization by petitioner of the condemned property, pointing out that its present use differs
from the purpose originally contemplated in the 1969 expropriation proceedings. The
argument is of no moment. The property has assumed a public character upon its
expropriation. Surely, petitioner, as the condemnor and as the owner of the property, is well
within its rights to alter and decide the use of that property, the only limitation being that it
be for public use, which, decidedly, it is.
In insisting on the return of the expropriated property, respondents would exhort on the
pronouncement in Provincial Government of Sorsogon vs. Vda. de Villaroya 14 where the
unpaid landowners were allowed the alternative remedy of recovery of the property there in
question. It might be borne in mind that the case involved the municipal government of
Sorsogon, to which the power of eminent domain is not inherent, but merely delegated and
of limited application. The grant of the power of eminent domain to local governments under
Josef Elvin Campos
Republic Act No. 716015 cannot be understood as being the pervasive and all-
encompassing power vested in the legislative branch of government. For local governments
to be able to wield the power, it must, by enabling law, be delegated to it by the national
legislature, but even then, this delegated power of eminent domain is not, strictly speaking,
a power of eminent, but only of inferior, domain or only as broad or confined as the real
authority would want it to be.16
Thus, in Valdehueza vs. Republic17 where the private landowners had remained unpaid ten
years after the termination of the expropriation proceedings, this Court ruled -
"The points in dispute are whether such payment can still be made and, if so, in what
amount. Said lots have been the subject of expropriation proceedings. By final and
executory judgment in said proceedings, they were condemned for public use, as part of an
airport, and ordered sold to the government. x x x It follows that both by virtue of the
judgment, long final, in the expropriation suit, as well as the annotations upon their title
certificates, plaintiffs are not entitled to recover possession of their expropriated lots - which
are still devoted to the public use for which they were expropriated - but only to demand the
fair market value of the same.
"Said relief may be granted under plaintiffs' prayer for: `such other remedies, which may be
deemed just and equitable under the premises'." 18
The Court proceeded to reiterate its pronouncement in Alfonso vs. Pasay City 19 where the
recovery of possession of property taken for public use prayed for by the unpaid landowner
was denied even while no requisite expropriation proceedings were first instituted. The
landowner was merely given the relief of recovering compensation for his property
computed at its market value at the time it was taken and appropriated by the State.
The judgment rendered by the Bulacan RTC in 1979 on the expropriation proceedings
provides not only for the payment of just compensation to herein respondents but likewise
adjudges the property condemned in favor of petitioner over which parties, as well as their
privies, are bound.20 Petitioner has occupied, utilized and, for all intents and purposes,
exercised dominion over the property pursuant to the judgment. The exercise of such rights
vested to it as the condemnee indeed has amounted to at least a partial compliance or
satisfaction of the 1979 judgment, thereby preempting any claim of bar by prescription on
grounds of non-execution. In arguing for the return of their property on the basis of non-
payment, respondents ignore the fact that the right of the expropriatory authority is far from
that of an unpaid seller in ordinary sales, to which the remedy of rescission might perhaps
apply. An in rem proceeding, condemnation acts upon the property. 21 After condemnation,
the paramount title is in the public under a new and independent title; 22 thus, by giving notice
to all claimants to a disputed title, condemnation proceedings provide a judicial process for
securing better title against all the world than may be obtained by voluntary conveyance. 23
Respondents, in arguing laches against petitioner did not take into account that the same
argument could likewise apply against them. Respondents first instituted proceedings for
payment against petitioner on 09 May 1984, or five years after the 1979 judgment had
become final. The unusually long delay in bringing the action to compel payment against
herein petitioner would militate against them. Consistently with the rule that one should take
good care of his own concern, respondents should have commenced the proper action
upon the finality of the judgment which, indeed, resulted in a permanent deprivation of their
ownership and possession of the property.24
The constitutional limitation of "just compensation" is considered to be the sum equivalent to
the market value of the property, broadly described to be the price fixed by the seller in
open market in the usual and ordinary course of legal action and competition or the fair
value of the property as between one who receives, and one who desires to sell, it fixed at
the time of the actual taking by the government. 25 Thus, if property is taken for public use
before compensation is deposited with the court having jurisdiction over the case, the final
compensation must include interests on its just value to be computed from the time the
property is taken to the time when compensation is actually paid or deposited with the
court.26 In fine, between the taking of the property and the actual payment, legal interests
accrue in order to place the owner in a position as good as (but not better than) the position
he was in before the taking occurred.27
The Bulacan trial court, in its 1979 decision, was correct in imposing interests on the zonal
value of the property to be computed from the time petitioner instituted condemnation
proceedings and "took" the property in September 1969. This allowance of interest on the
amount found to be the value of the property as of the time of the taking computed, being
an effective forbearance, at 12% per annum 28 should help eliminate the issue of the
constant fluctuation and inflation of the value of the currency over time. 29 Article 1250 of the
Civil Code, providing that, in case of extraordinary inflation or deflation, the value of the
Josef Elvin Campos
currency at the time of the establishment of the obligation shall be the basis for the payment
when no agreement to the contrary is stipulated, has strict application only to contractual
obligations.30 In other words, a contractual agreement is needed for the effects of
extraordinary inflation to be taken into account to alter the value of the currency. 31
All given, the trial court of Bulacan in issuing its order, dated 01 March 2000, vacating its
decision of 26 February 1979 has acted beyond its lawful cognizance, the only authority left
to it being to order its execution. Verily, private respondents, although not entitled to the
return of the expropriated property, deserve to be paid promptly on the yet unpaid award of
just compensation already fixed by final judgment of the Bulacan RTC on 26 February 1979
at P6.00 per square meter, with legal interest thereon at 12% per annum computed from
the date of "taking" of the property, i.e., 19 September 1969, until the due amount shall
have been fully paid.
WHEREFORE, the petition is GRANTED. The resolution, dated 31 July 2000, of the Court
of Appeals dismissing the petition for certiorari, as well as its resolution of 04 January 2001
denying the motion for reconsideration, and the decision of the Regional Trial Court of
Bulacan, dated 01 March 2000, are SET ASIDE. Let the case be forthwith remanded to the
Regional Trial Court of Bulacan for the proper execution of its decision promulgated on 26
February 1979 which is hereby REINSTATED. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, Ynares-Santiago, and Austria-Martinez, JJ., concur.
4. Reclassification of Lands
Cases:
Department of Agrarian Reform v. Saranggani Agricultural Co., Inc. (G.R.
No. 165547, 24 January 2007)
G.R. No. 165547 January 24, 2007
DEPARTMENT OF AGRARIAN REFORM, as represented by its Secretary, RENE C.
VILLA, Petitioner,
vs.
SARANGANI AGRICULTURAL CO., INC., ACIL CORPORATION, NICASIO
ALCANTARA and TOMAS ALCANTARA, Respondents.
DECISION
AZCUNA, J.:
This is a petition for review 1 by the Department of Agrarian Reform (DAR) seeking the
reversal of the Decision and Resolution, dated July 19, 2004 and September 24, 2004,
respectively, of the Court of Appeals in CA-G.R. SP No. 79899, entitled "Sarangani
Agricultural Co, Inc., et al. v. Hon. Manuel Domingo, et al."
Respondents are the owners of the lands in question which have been reclassified from
agricultural into non-agricultural uses by virtue of a municipal zoning ordinance, and are
included in the comprehensive land use plan of the Municipality of Alabel.
The antecedents are as follows:
The Province of Sarangani was created pursuant to Republic Act No. 7228 on March 16,
1992, composed of seven (7) municipalities, namely, Alabel, Glan, Maasin, Maitum,
Malapatan, Malungon and Kiamba which were segregated from the Province of South
Cotabato. Under said Act, the Municipality of Alabel was made the capital of the new
province where the capitol building and all other national and provincial offices shall be
established.2
On February 14, 1997, the Sangguniang Bayan of Alabel passed Resolution No. 97-08 or
"Resolution Adopting and Endorsing the Ten-Year Municipal Comprehensive Development
Plan (MCDP 1995-2005) of the Municipality of Alabel and Its Land Use Development Plan
and Zoning Ordinance for Adoption and Approval of the Provincial Governor, Honorable
Priscilla L. Chiongbian, Thru The Honorable Sangguniang Panlalawigan of Sarangani
Province."
On January 30, 1998, pursuant to Municipal Zoning Ordinance No. 08, Series of 1997, and
to accelerate the development and urbanization of Alabel, the Sangguniang Bayan of Alabel
passed Resolution No. 98-03 reclassifying lots that were located within the built-up areas,
based on the 1995-2005 Land Use Plan of the municipality, from agricultural to non-
agricultural uses.3
On March 2, 1998, the Sangguniang Panlalawigan of Sarangani approved Resolution No.
98-018 or the "Resolution Adopting the Ten-Year Municipal Comprehensive Development
Plan (MCDP 1995-2205) and the Land Use Development Plan and Zoning Ordinance of the
Josef Elvin Campos
Municipality of Alabel, Sarangani Per Resolution No. 97-08 and Municipal Ordinance No.
97-08, S. of 1997 of the Sangguniang Bayan of Alabel." A portion of the area involving
376.5424 hectares, however, was covered by the Comprehensive Agrarian Reform Law
(R.A. No. 6657) commercial farms deferment scheme. 4
The Zoning Certification issued by the office of the Municipal Planning and Development
Council (MPDC) showed that respondents’ properties located at Barangay Maribulan,
Alabel were among those reclassified from agricultural and pasture land to residential,
commercial institutional, light industrial and open space in the 1995-2005 land use plan of
Alabel. 5
On July 2, 1998, respondent Sarangani Agricultural Company, Inc. (SACI) filed an
application for land use conversion of the following parcels of land with an aggregate area
of 1,005 hectares:
Registered Owner TCT No. Lot No. Area (Ha.) Area Applied
(Ha.)
SACI T-7207 1-C 52.4365 52.4365
SACI T -48807 (T-4807) 2 181.3353 181.3353
SAC I T -48808 (T-4808) 3 281.0874 281.0874
SACI T -48809 (T-4809) 4 241.7880 241.7880
SAC I T-48810 (T-4810) 5 40.6738 40.6738
SACI T -48811 (T-4811) 6 137.0340 137.0340
SACI T-48812 (T-4812) 7 12.3265 12.3265
Nicasio Alcantara T-(10885) T-44538 10 20.9149 20.9149
SACI T-9210 2 12.1425 12.1425
Tomas Alcantara T-14359 (T-1185) 39 10.9390 10.9390
Nicasio Alcantara Untitled 53 5.0672 5.0672
ACIL Corporation T-(41758) (T-4150) 806 3.3115 3.3115
SACI Untitled 807 6.7871 6.7871
Accompanying SACI’s application for conversion were the documents required under the
Department of Agrarian Reform (DAR) Administrative Order No. 7, Series of 1997. 6
Subsequently, a Site Inspection Report was prepared by the Housing and Land Use
Regulatory Board (HLURB) Regional Office (Region XI) and was indorsed to DAR
Secretary Horacio R. Morales, Jr.
On March 16, 1999, the Provincial Agrarian Reform Council (PARC) and the Provincial
Land Use Technical Committee (PLUTC) 7 conducted an inspection of the subject
properties. In a Memorandum dated July 9, 1999, the PLUTC recommended that SACI’s
application be made subject to the following conditions: 1) presentation by SACI of its
development plan; 2) submission of the lacking documents; 3) re-survey and segregation of
the property according to use or project in coordination with the DAR Regional Office; and,
4) submission of the resulting map indicating the technical description of the area per actual
use/project attested by the Regional Director.
Meanwhile, on March 22, 1999, members of the Sarangani Agrarian Reform Beneficiaries
Association, Inc. (SARBAI) sent a letter-petition to the DAR Secretary oppposing the
application for land use conversion filed by SACI. SARBAI alleged that its members were
merely forced to sign the waiver of rights, considering that the commercial farm deferment
period ended on June 15, 1998. Later, an "Urgent Petition for the Denial of Land Use
Conversion Application of Banana Commercial Farm of SACI" was filed by SARBAI and
was received by the PARC Secretariat on July 14, 1999.
In the March 30, 2000 deliberation of the PLUTC, the committee agreed to recommend the
disapproval of 158.0672 hectares that had been planted with bananas and coconuts. The
committee noted that said portion of the property was still viable for agriculture, irrigated,
with Notice of Coverage, and under protest or with opposition from SARBAI. It likewise
recommended that the decision as to the rest of the area applied for conversion shall be
deferred subject to the submission of the following within a period of thirty (30) days: 1) a
five-year comprehensive development plan; 2) a survey plan signed by the Regional
Technical Director of Land Management Service and noted by the DAR Regional Director
Josef Elvin Campos
(Region XI); 3) SACI’s proof of undertaking, which will contain the package of benefits it
intends to give to the affected farm workers except those working in the banana plantation;
4) the concurrence of all the workers who would be affected by the proposed conversion,
which concurrence should be noted by the Municipal Agrarian Reform Office (MARO) and
acknowledged by a notary public.
On its part, SACI contended that 1) its projects were aligned to address the current and
anticipated commercial and residential needs of Sarangani province, and the removal of
any portion of its property included in its comprehensive development plan will affect the
viability of the plan; 2) the banana plantations will be transformed into a socialized housing
subdivision which will be made available to the displaced workers and the other low income
earners of Alabel; 3) the company will construct and install power generation facilities in the
entire area; 4) at the time the application for land use conversion was filed, no Notice of
Coverage was ever issued by DAR, and the subsequent issuance of such notice was highly
irregular because the same may be issued only after the final resolution of the application
for land use conversion; and 5) the previous Order of Deferment cannot be a legal barrier to
the filing of an application for land use conversion.
On November 9, 2000, DAR Secretary Horacio R. Morales, Jr. denied SACI’s application for
land use conversion. The pertinent portion of the Order reads:
… The proponent also submitted another DA certification stating that 12 parcels of land (Lot
Nos. 2, 3, 4, 5, 6, 7, 12, 807, 53, 10, 39 and 806) with an area of 816.7401 hectares,
located at Maribulan, Alabel, Sarangani are part of expansion for urbanizing areas. Though
discussed on several meetings, no decision was made on the application since the
applicant was not able to comply with the documentary requirements and clarify the issues
raised by the Committee.
[I]n [the] 30 March 2000 Meeting of the PLUTC, the Committee deliberated again [on] the
subject application and agreed to recommend the disapproval of 158.0672 hectares area
planted to banana[s] and coconuts. The Committee noted that said portion of the property is
still viable for agriculture, irrigated, with Notice of Coverage and with protest or opposition
from SARBAI. The Committee also agreed to request the DAR to determine the metes and
bounds of the area planted to banana[s] and coconuts vis-à-vis areas devoted to other
enterprises. Relative to the rest of the area applied for conversion, the committee deferred
its decision subject to the submission of a 5-year comprehensive development plan,
showing among others, the schedule of development by phase, the specific lots involved
and the corresponding proposed use.
…The Committee acceded to the request of SACI and deferred its recommendation to deny
conversion of that portion of the property planted to banana[s] and coconut[s] pending
submission of a manifesto or SACI’s proof of undertaking that it will compensate farm
workers affected by showing, among others, the schedule of development by phase, the
specific lots involved and the corresponding proposed use [of] the conversion, concurred by
the workers/oppositors, noted by the MARO and duly notarized. The Committee also
requested SACI to submit details of the pomelo farm in Malandag being offered as a
replacement farm for the relocation of the farm workers. SACI was given a 30-day period to
submit these documents.
SACI, however, failed to submit the oath of undertaking to pay disturbance compensation to
affected workers being required by the Committee and as provided under DAR
Administrative Order No. 01, Series of 1999. Instead, SACI submitted an undertaking
executed by the affected workers stating that they are amenable to the package of benefits
offered by the company. Nevertheless, those who executed the deed of undertaking did not
represent the majority of the farm workers. Out of the 95 regular banana workers only 45
and eight (8) supervisors including four (4) workers who were not included in the workers’
master list of SACI executed a deed of undertaking. As regards the 105-hectare pomelo
farm, SACI failed to affirm whether they are going to pursue their offer. Likewise, DAR
Region XI reported that coverage of the same area is on-going, and a different group of
potential beneficiaries have already been identified. Therefore, it could no longer be offered
as a relocation site. Foregoing considered, the Committee, during its 18 August 2000
Meeting, sustained its earlier recommendation to deny the conversion of that portion of the
property planted to bananas and coconuts.
With regard to the rest. of the area, the Committee deferred its decision subject to the
delineation by the SACI of the total area that they can develop within the allowed five -year
period. Likewise, the PLUTC is requesting the SACI to submit a revised five-year
development plan that will show the schedule of development by phase, by year, and the
proposed use for each parcel of land.
WHEREFORE, premises considered, it is hereby ordered that:
Josef Elvin Campos
1. The application filed by the Sarangani Agricultural Company, Inc. (SACI),
represented by Cynthia Adao-Prat, involving parcels of land planted to banana[s]
and coconut[s] and with Notice of Coverage identified as TCT Nos. T-10885
(20.9149 ha.), T-14359 (10.9390 ha.), T-41718 (3.3115 ha.), OCT No. V-19574 or T-
9210 (12.1425 ha.), Lot 807 (6.7871 ha.) and portion of P-V-125 (95.00 ha.) and [an]
area covered by Lot 53 (5.0672 ha.) with an aggregate area of 154.622 [actually it is
154.1622] hectares is hereby DENIED. The Dar Regional Office of Region XI is
hereby instructed to determine the metes and bounds of the area subject for
distribution to the qualified FWBs.
2. The resolution of the application involving the rest of the area applied for
conversion is DEFERRED pending submission by the applicant of a revised five-year
development plan indicating the specific use of each parcel of land.
SO ORDERED.8
Petitioner filed a Motion for Reconsideration of the above decision but the same was denied
by the Court of Appeals in a Resolution, dated September 24, 2004.
Their Motion for Reconsideration of the above Order having been denied, respondents
appealed to the Office of the President (O.P. Case No. 02-1-47.4, alleging that the
Secretary of Agrarian Reform committed serious errors in 1) finding that a notice of
coverage had been issued for the banana area of the landholdings; 2) giving undue
significance to the protest or opposition by SARBAI; 3) requiring a deed of undertaking even
after applicant-appellant’s written commitment to pay whatever lawful obligation SACI may
incur as a consequence of the conversion; 4) holding that farms with commercial farm
deferment cannot be applied for conversion; 5) ruling that irrigated lands suitable for
agriculture were disqualified for conversion; and 6) ruling that applicant-appellant had not
submitted a five-year development plan.9
In a Decision dated June 30, 2003, the Office of the President through Presidential
Assistant Manuel C. Domingo dismissed the appeal and affirmed in toto the challenged
DAR Orders. Respondents’ motion for reconsideration was denied, 10 so they filed with the
Court of Appeals a petition for review raising substantially the same issues.
On July 19, 2004, the Court of Appeals rendered a Decision granting the petition, the
dispositive portion of which reads:
WHEREFORE, premises considered, the present petition is hereby GIVEN DUE COURSE.
Consequently, the assailed Decision and Order dated June 30, 2003 and September 12,
2003, respectively, of the Office of the President, as well as the Orders dated November 9,
2000 and August 28, 2002 of the DAR Secretary are hereby REVERSED and SET ASIDE
insofar as the DAR directs the MARO of Alabel, Sarangani to proceed with the distribution
of the banana and coconut areas subject of the June 16, 1998 Notice of Coverage. The
Secretary of the Department of Agrarian Reform is hereby directed to issue a conversion
order covering the aforesaid area under the terms and conditions as provided in pertinent
guidelines of the department. As to the rest of the area applied for conversion, action on
which has been deferred, the DAR Regional Office (DAR Region No. XI) is hereby
DIRECTED to expedite the processing and evaluation of petitioners’ land use conversion
application in accordance with the provisions of DAR AO No.7, Series of 1997, and DAR
AO No. 01-99 whenever the provisions of the latter issuance are made applicable to those
applications filed before its effectivity.
The DAR Secretary and all officers and employees acting on his behalf are hereby enjoined
from proceeding with the distribution of petitioners’ lands under compulsory acquisition
provided in Sec. 16 of R.A. No. 6657. Whatever actions already taken in pursuance of the
June 16, 1998 Notice of Coverage under CARP are hereby nullified for DAR’s failure to
observe due process therein.
SO ORDERED.11
Hence, this petition alleging that the Court of Appeals erred:
I
WHEN IT RULED THAT THE JUNE 16, 1998 NOTICE OF COVERAGE WAS ILLEGAL AS
DAR ALLEGEDLY FAILED TO OBSERVE DUE PROCESS.
II
WHEN IT RULED THAT DAR SHOULD USE THE COMPREHENSIVE LAND USE PLANS
AND ACCOMPANYING ORDINANCE OF THE LOCAL SANGGUNIAN AS PRIMARY
REFERENCE SO AS NOT TO DEFEAT THE VERY PURPOSE OF THE LOCAL
GOVERNMENT UNIT (LGU) CONCERNED IN RECLASSIFYING CERTAIN AREAS TO
ACHIEVE SOCIAL AND ECONOMIC BENEFITS IN PURSUANCE TO ITS MANDATE
TOWARDS THE GENERAL WELFARE.
Josef Elvin Campos
III
WHEN IT FAILED TO TAKE INTO CONSIDERATION THE BASIC PROVISIONS AND
PRINCIPLES OF LAW WITH SPECIAL ATTENTION TO THE REQUIREMENTS OR
PRECONDITIONS FOR LAND CLASSIFICATION/CONVERSION AND THE BASIC
MANDATE OF THE CARP.
With regard to the first issue on due process, this Court holds that, under the
circumstances, a notice of coverage is not an indispensable requirement before DAR can
acquire the subject lots or commercial farms, which are covered by a deferment
period12 under the Comprehensive Agrarian Reform Law (CARL) or R.A. No 6657 upon its
effectivity on June 15, 1998. The pertinent provision of the law states:
Sec. 11. Commercial Farming. – Commercial farms, which are private agricultural lands
devoted to saltbeds, fruit farms, orchards, vegetables and cut-flower farms, cacao, coffee
and rubber plantations, shall be subject to immediate compulsory acquisition and
distribution after ten (10) years from the effectivity of this Act. 13 In the case of new farms, the
ten-year period shall begin from the first year of commercial production and operation, as
determined by the DAR. During the ten-year period, the Government shall initiate steps
necessary to acquire these lands, upon payment of just compensation for the land and the
improvements thereon, preferably in favor of organized cooperatives or associations, which
shall thereafter manage the said lands for the workers-beneficiaries. (AS amended by R.A.
7881; Rules and regulations on the acquisition, valuation compensation and distribution of
deferred commercial farms – DAR AO No. 09, s. 1998)
DAR Administrative Order No.9, Series of 1998,14 on the Rules and Regulations on the
Acquisition, Valuation, Compensation and Distribution of Deferred Commercial
Farms applies to all commercial farms as defined under Section 11 of R.A. No. 6657: 15
SEC. 2. Statement of Policies. – The acquisition, valuation, compensation, distribution,
operation and management of deferred commercial farms shall be governed by the
following policies:
(a) All commercial farms whose deferment expired as of June 15, 1998 shall be subject to
immediate acquisition and distribution under the Comprehensive Agrarian Reform Program
(CARP). Those whose deferments have yet to expire will be acquired and distributed only
upon expiration of their respective deferment period as originally determined by the
Department of Agrarian reform (DAR), or earlier if the DAR determines that the purpose for
which it was deferred no longer exists and revokes its deferment;
The process of acquisition of these commercial farms by DAR is specifically provided under
Article III, Section 9 of the above administrative order, to wit:
SEC. 9. Procedure for Acquisition.—The acquisition of deferred commercial farms shall be
governed by the following procedures:
(a) Voluntary Offer to Sell/Compulsory Acquisition
1) The Order of Deferment previously issued over the landholding shall
serve, upon expiration of the deferment period of the subject commercial
farm, as the Notice of Coverage,[16] supported by the Compliance Work
Program and Summary of Exceptions (Form A) originally submitted with the
approved deferment application. However, for record purposes, the
landowner shall be served a Notice of Expiration of Deferment (Annex 2)
which shall contain a reminder of his right of retention, should he wish to
exercise the same;
2) In general, the procedure for acquisition shall follow DAR Administrative
Order No. 01, Series of 1998, as amended by DAR Administrative Order No.
02, Series of 1996, entitled "Revised Rules and Procedures governing the
Acquisition of Agricultural Lands subject of Voluntary offer to Sell and
Compulsory Acquisition Pursuant to Republic Act No. 6657," subject to
certain modifications intended to expedite the process as provided herein.
Clearly, it was unnecessary for petitioner to issue a notice of coverage to
respondents in order to place the properties in question under CARP coverage.
Hence, the contention by respondents that due process was not duly observed by
petitioner must fail. Accordingly, the denial of the application for conversion must be
upheld.
As regards the second issue, DAR Administrative Order No. 7, Series of 1997, or
the Omnibus Rules and Procedures Governing Conversion of Agricultural
Lands to Non-agricultural Uses prescribes the guidelines for land use conversion:
VI. POLICIES AND GUIDELINES
A. …
B. General Guidelines
Josef Elvin Campos
…
b) Conversion may be allowed if at the time of the application, the lands are
reclassified as commercial, industrial, residential or other non-agricultural in the new
or revised town plans promulgated by the local government unit (LGU) and approved
by the Housing and Land Use Regulatory Board (HLURB) or by the Sangguniang
Panlalawigan (SP) after June 15, 1988, in accordance with Section 20 of R.A. No.
7160, as implemented by MC No. 54, and Executive Order No. 72, Series of
199317 of the Office of the President.
In connection with the afore-stated administrative order, Section 20 of Republic Act
No. 7160, otherwise known as the Local Government Code of 1991, empowers the
local government units to reclassify agricultural lands:
Sec. 20. Reclassification of Lands. - (a) A city or municipality may, through an
ordinance passed by the Sanggunian after conducting public hearings for the
purpose, authorize the reclassification of agricultural lands and provide for the
manner of their utilization or disposition in the following cases: (1) when the land
ceases to be economically feasible and sound for agricultural purposes as
determined by the Department of Agriculture or (2) where the land shall have
substantially greater economic value for residential, commercial, or industrial
purposes, as determined by the Sanggunian concerned: Provided, That such
reclassification shall be limited to the following percentage of the total agricultural
land area at the time of the passage of the ordinance:
(1) For highly urbanized and independent component cities, FIFTEEN
PERCENT (15%);
(2) For component cities and first to third class municipalities, ten percent
(10%), and
(3) For fourth to sixth class municipalities, five percent (5%); Provided
further, That agricultural lands distributed to agrarian reform beneficiaries
pursuant to Republic Act No. 6657, otherwise known as "The Comprehensive
Agrarian Reform Law," shall not be affected by the said reclassification and
the conversion of such lands into other purposes shall be governed by
Section 65 of said Act.
…
(c) The local government units shall in conformity with existing laws, continue to
prepare their respective comprehensive land use plans enacted though zoning
ordinances which shall be the primary and dominant bases for the future use of land
resources: Provided, That the requirements for food production, human settlements,
and industrial expansion shall be taken into consideration in the preparation of such
plans.1avvphi1.net
…
(e) Nothing in this section shall be construed as repealing, amending or modifying in
any manner the provisions of R.A. No. 6657.18
Memorandum Circular No. 54 "Prescribing the Guidelines Governing Section 20 of R.A. No.
7160 Otherwise Known as the Local Government Code of 1991 Authorizing Cities and
Municipalities to Reclassify Agricultural Lands Into Non-Agricultural Uses" issued by
President Fidel V. Ramos on June 8, 1993 specified the scope and limitations on the power
of the cities and municipalities to reclassify agricultural lands into other uses. It provided that
all ordinances authorizing reclassification of agricultural lands shall be subject to the review
and approval of the province in the case of component cities or municipalities, or by the
HLURB for highly urbanized or independent component cities in accordance with Executive
Order No. 72, Series of 1993, thus:
SECTION 4. Use of the comprehensive land use plans 19 and ordinances as primary
reference documents in land use conversions. - Pursuant to RA 6657 and EO 129-A,
actions on applications for land use conversions on individual landholdings shall remain as
the responsibility of DAR, which shall utilize as its primary reference documents the
comprehensive land use plans and accompanying ordinance passed upon and approved by
the LGUs concerned, together with the National Land Use Policy.
Hence, with regard to agricultural lands that have been reclassified for non-agricultural uses
by the local government unit concerned, the CA is correct in declaring that DAR should refer
to the comprehensive land use plans and the ordinances of the Sanggunian in assessing
land use conversion applications, thus:
Construing Sec. 20 of the Local Government Code and the subsequent administrative
issuances implementing the same, we are of the opinion that while the DAR retains the
responsibility for approving or disapproving applications for land use conversion filed by
Josef Elvin Campos
individual landowners on their landholdings, the exercise of such authority should be
confined to compliance with the requirements and limitations under existing laws and
regulations, such as the allowable percentage of agricultural [area] to be reclassified,
ensuring sufficient food production, areas non-negotiable for conversion and those falling
under environmentally critical areas or highly restricted for conversion under the NIPAS law.
Definitely, the DAR’s power in such cases may not be exercised in such a manner as to
defeat the very purpose of the LGU concerned in reclassifying certain areas to achieve
social and economic benefits in pursuit of its mandate towards the general welfare.
Precisely, therefore, the DAR is required to use the comprehensive land use plans and
accompanying ordinances of the local Sanggunian as primary references in evaluating
applications for land use conversion filed by individual landowners. In this case, petitioners
have already complied with the standard requirements laid down under the applicable rules
and regulations of the DAR....20
The conversion of agricultural lands into non-agricultural uses shall be strictly regulated and
may be allowed only when the conditions prescribed under R.A. No. 6657 are present. 21 In
this regard, the Court agrees with the ratiocination of the CA that DAR’s scope of authority
in assessing land use conversion applications is limited to examining whether the
requirements prescribed by law and existing rules and regulations have been complied with.
This holds true in the present case where, because of the creation of the Province of
Sarangani and in view of its thrust to urbanize, particularly its provincial capital which is the
Municipality of Alabel, the local government has reclassified certain portions of its land area
from agricultural to non-agricultural. Thus, to reiterate, in accordance with E.O. No. 72,
Series of 1993, and subject to the limitations prescribed by law, DAR should utilize the
comprehensive land use plans in evaluating the land use conversion application of
respondents whose lands have already been reclassified by the local government for non--
agricultural uses.
This is not to say, however, that every property of respondents which is included in the
comprehensive land use plan of the Municipality of Alabel shall be automatically granted
non-coverage. As mentioned earlier, said application is subject to the limitations and
conditions prescribed by law. One such limitation that is present here is that a portion of
respondents’ property of 376.5424 hectares, a portion totaling 154.622 [or 154.1622]
hectares which are planted to bananas and coconuts, are covered by CARL’s ten-year
deferment scheme, which has expired on June 15, 1998. By law, these lands are subject to
redistribution to CARP beneficiaries upon the lapse of the ten-year period, counted from the
date of the effectivity of the CARL or R.A. No. 6657 on June 15, 1988, which was way
before the creation of the Province of Sarangani and the eventual reclassification of the
agricultural lands into non-agricultural in the Municipality of Alabel where respondents’
properties are located.
In short, the creation of the new Province of Sarangani, and the reclassification that was
effected by the Municipality of Alabel did not operate to supersede the applicable provisions
of R.A. No. 6657.
Moreover, Section 20 of the LGC of 1991 on the reclassification of lands explicitly states
that "[n]othing in this section shall be construed as repealing, amending or modifying in any
manner the provisions of R.A. No. 6657." Thus, where the law speaks in clear and
categorical language, there is no room for interpretation. There is only room for
application.22
In view of the foregoing, the Court deems it unnecessary to discuss the third issue
presented in the petition.
WHEREFORE, the petition is PARTLY GRANTED insofar as the issue on due process is
concerned. In connection with this, the denial by the Department of Agrarian Reform (DAR)
of respondents’ application for conversion with regard to the 154.622 [or 154.1622]
hectares, the deferment period of which has already expired, is AFFIRMED; and the Orders
of the DAR dated November 9, 2000 and August 28, 2002, directing the MARO of Alabel,
Sarangani to proceed with the distribution of the banana and coconut areas subject of the
June 16, 1998 Notice of Coverage, are REINSTATED. The Decision and Resolution, dated
July 19, 2004 and September 24, 2004, respectively, of the Court of Appeals in CA-G.R. SP
No. 79899, are hereby MODIFIED accordingly.
No costs.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
Josef Elvin Campos
5. Closure and Opening of Roads (Sec. 21, LGC)
SEC. 21. Closure and Opening of Roads. - (a) A local government unit
may, pursuant to an ordinance, permanently or temporarily close or open
any local road, alley, park, or square falling within its jurisdiction:
Provided, however, That in case of permanent closure, such ordinance
must be approved by at least two-thirds (2/3) of all the members of
the sanggunian, and when necessary, an adequate substitute for the
public facility that is subject to closure is provided.
(b) No such way or place or any part thereof shall be permanently closed
without making provisions for the maintenance of public safety therein. A
property thus permanently withdrawn from public use may be used or
conveyed for any purpose for which other real property belonging to the
local government unit concerned may be lawfully used or conveyed:
Provided, however, That no freedom park shall be closed permanently
without provision for its transfer or relocation to a new site.
(c) Any national or local road, alley, park, or square may be temporarily
closed during an actual emergency, or fiesta celebrations, public rallies,
agricultural or industrial fairs, or an undertaking of public works and
highways, telecommunications, and waterworks projects, the duration of
which shall be specified by the local chief executive concerned in a written
order: Provided, however, That no national or local road, alley, park, or
square shall set temporarily closed for athletic, cultural, or civic activities
not officially sponsored, recognized, or approved by the
local government unit concerned.
(d) Any city, municipality, or barangay may, by a duly enacted ordinance,

temporarily close and regulate the use of any local street, road,
thoroughfare, or any other public place where shopping malls, Sunday,
flea or night markets, or shopping areas may be established and where
goods, merchandise, foodstuffs, commodities, or articles of commerce
may be sold and dispensed to the general public.
Cases:
Sangalang v. Intermediate Appellate Court (G.R. No. 71169, 25 August
1989)
G.R. No. 71169 August 30, 1989
JOSE D. SANGALANG and LUTGARDA D. SANGALANG, petitioners, FELIX C.
GASTON and DOLORES R. GASTON, JOSE V. BRIONES and ALICIA R. BRIONES,
and BEL-AIR VILLAGE ASSOCIATION, INC., intervenors-petitioners,
vs.
INTERMEDIATE APPELLATE COURT and AYALA CORPORATION, respondents.
G.R. No. 74376 August 30, 1989
BEL-AIR VILLAGE ASSOCIATION, INC., petitioner,
vs.
THE INTERMEDIATE APPELLATE COURT, ROSARIO DE JESUS TENORIO, and
CECILIA GONZALEZ, respondents.
G.R. No. 76394 August 30, 1989
vs.
THE COURT OF APPEAL and EDUARDO and BUENA ROMUALDEZ respondents.
G.R. No. 78182 August 30, 1989
vs.
COURT OF APPEALS, DOLORES FILLEY and J. ROMERO &
ASSOCIATES, respondents.
G.R. No. 82281 August 30, 1989
vs.
Josef Elvin Campos
COURT OF APPEALS, VIOLETA MONCAL, and MAJAL DEVELOPMENT
CORPORATION, respondents.
RESOLUTION
SARMIENTO, J.:
The incident before the Court refers to charges for contempt against Atty. J. Cezar Sangco,
counsel for the petitioners Spouses Jose and Lutgarda Sangalang. (G.R. No. 71169.)
On February 2, 1989, the Court issued a Resolution, requiring, among other things, Atty.
Sangco to show cause why he should not be punished for contempt "for using intemperate
and accusatory language." 1 On March 2, 1989, Atty. Sangco filed an explanation.
The Court finds Atty. Sangco's remarks in his motion for reconsideration, reproduced as
follows:
...
This Decision of this Court in the above-entitled case reads more like a Brief
for Ayala ... 2
... [t]he Court not only put to serious question its own integrity and
competence but also jeopardized its own campaign against graft and
corruption undeniably pervading the judiciary ... 3
...
The blatant disregard of controlling, documented and admitted facts not put in
issue, such as those summarily ignored in this case; the extraordinary efforts
exerted to justify such arbitrariness and the very strained and unwarranted
conclusions drawn therefrom, are unparalleled in the history of this Court ... 4
...
... [T]o ignore the fact that Jupiter Street was originally constructed for the
exclusive benefit of the residents of Bel- Air Village, or rule that respondent
Court's admission of said fact is "inaccurate," as Ayala's Counsel himself
would like to do but did not even contend, is a manifestation of this Court's
unusual partiality to Ayala and puts to serious question its integrity on that
account. 5
...
[i]t is submitted that this ruling is the most serious reflection on the Court's
competence and integrity and exemplifies its manifest partiality towards
Ayala. It is a blatant disregard of documented and incontrovertible and
uncontroverted factual findings of the trial court fully supported by the records
and the true significance of those facts which both the respondent court and
this Court did not bother to read and consequently did not consider and
discuss, least of all in the manner it did with respect to those in which it
arrived at conclusions favorable to Ayala. 6
To totally disregard Ayala's written letter of application for special
membership in BAVA which clearly state that such membership is necessary
because it is a new development in their relationship with respect to its
intention to give its commercial lot buyers an equal right to the use of Jupiter
Street without giving any reason therefor, smacks of judicial arrogance ... 7
...
... [A]re all these unusual exercise of such arbitrariness above suspicion? Will
the current campaign of this Court against graft and corruption in the judiciary
be enhanced by such broad discretionary power of courts? 8
disparaging, intemperate, and uncalled for. His suggestions that the Court might have been
guilty of graft and corruption in acting on these cases are not only unbecoming, but comes,
as well, as an open assault upon the Court's honor and integrity. In rendering its judgment,
the Court yielded to the records before it, and to the records alone, and not to outside
influences, much less, the influence of any of the parties. Atty. Sangco, as a former judge of
an inferior court, should know better that in any litigation, one party prevails, but his success
will not justify indictments of bribery by the other party. He should be aware that because of
his accusations, he has done an enormous disservice to the integrity of the highest tribunal
and to the stability of the administration of justice in general.
As a former judge, Atty. Sangco also has to be aware that we are not bound by the findings
of the trial court (in which his clients prevailed).lâwphî1.ñèt But if we did not agree with the
findings of the court a quo, it does not follow that we had acted arbitrarily because,
precisely, it is the office of an appeal to review the findings of the inferior court.
Josef Elvin Campos
To be sure, Atty. Sangco is entitled to his opinion, but not to a license to insult the Court
with derogatory statements and recourses to argumenta ad hominem. In that event, it is the
Court's duty "to act to preserve the honor and dignity ... and to safeguard the morals and
ethics of the legal profession." 9
We are not satisfied with his explanation that he was merely defending the interests of his
clients. As we held in Laureta, a lawyer's "first duty is not to his client but to the
administration of justice; to that end, his client's success is wholly subordinate; and his
conduct ought to and must always be scrupulously observant of law and ethics." 10 And
while a lawyer must advocate his client's cause in utmost earnest and with the maximum
skill he can marshal, he is not at liberty to resort to arrogance, intimidation, and innuendo.
That "[t]he questions propounded were not meant or intended to accuse but to ... challenge
the thinking in the Decision, 11 comes as an eleventh-hour effort to cleanse what is in fact
and plainly, an unfounded accusation. Certainly, it is the prerogative of an unsuccessful
party to ask for reconsideration, but as we held in Laureta, litigants should not "'think that
they will win a hearing by the sheer multiplication of words' ". 12 As we indicated (see
Decision denying the motions for reconsideration in G.R. Nos. 71169, 74376, 76394, 78182,
and 82281, and deciding G.R. No. 60727, dated August 25, 1989), the movants have raised
no new arguments to warrant reconsideration and they can not veil that fact with
inflammatory language.
Atty. Sangco himself admits that "[a]s a judge I have learned to live with and accept with
grace criticisms of my decisions". 13 Apparently, he does not practice what he preaches. Of
course, the Court is not unreceptive to comment and critique of its decisions, but provided
they are fair and dignified. Atty. Sangco has transcended the limits of fair comment for
which he deserves this Court's rebuke.
In our "show-cause" Resolution, we sought to hold Atty. Sangco in contempt, specifically,
for resort to insulting language amounting to disrespect toward the Court within the meaning
of Section 1, of Rule 71, of the Rules of Court. Clearly, however, his act also constitutes
malpractice as the term is defined by Canon 11 of the Code of Professional Responsibility,
as follows:
CANON 11-A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE
COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT
BY OTHERS.
Rule 11.01...
Rule 11.02...
Rule 11.03-A lawyer shall abstain from scandalous, offensive or menacing
language or behavior before the Courts.
Rule 11.04-A lawyer should not attribute to a Judge motives not supported by
the record or have no materiality to the case.
Rule 11.05...
Thus, aside from contempt, Atty. Sangco faces punishment for professional misconduct or
malpractice.
WHEREFORE Atty. J. Cezar Sangco is (1) SUSPENDED from the practice of law for three
(3) months effective from receipt hereof, and (2) ORDERED to pay a fine of P 500.00
payable from receipt hereof. Let a copy of this Resolution be entered in his record.
IT IS SO ORDERED.
Fernan, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes,
Griñ;o-Aquino, Medialdea and Regalado, JJ., concur.
Narvasa, and Gutierrez, Jr., JJ., took no part.
MMDA v. Bel Air Village Assoc. Inc. (G.R. No. 135962, 27 March 2000)
G.R. No. 135962 March 27, 2000
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner,
vs.
BEL-AIR VILLAGE ASSOCIATION, INC., respondent.
PUNO, J.:
Not infrequently, the government is tempted to take legal shortcuts solve urgent problems of
the people. But even when government is armed with the best of intention, we cannot allow
it to run roughshod over the rule of law. Again, we let the hammer fall and fall hard on the
illegal attempt of the MMDA to open for public use a private road in a private subdivision.
While we hold that the general welfare should be promoted, we stress that it should not be
achieved at the expense of the rule of law.
Petitioner MMDA is a government agency tasked with the delivery of basic services in Metro
Manila. Respondent Bel-Air Village Association, Inc. (BAVA) is a non-stock, non-profit
Josef Elvin Campos
corporation whose members are homeowners in Bel-Air Village, a private subdivision in
Makati City. Respondent BAVA is the registered owner of Neptune Street, a road inside Bel-
Air Village.
On December 30, 1995, respondent received from petitioner, through its Chairman, a notice
dated December 22, 1995 requesting respondent to open Neptune Street to public vehicular
traffic starting January 2, 1996. The notice reads:
SUBJECT: NOTICE of the Opening of Neptune Street to Traffic.
Dear President Lindo,
Please be informed that pursuant to the mandate of the MMDA law or Republic Act
No. 7924 which requires the Authority to rationalize the use of roads and/or
thoroughfares for the safe and convenient movement of persons, Neptune Street
shall be opened to vehicular traffic effective January 2, 1996.
In view whereof, the undersigned requests you to voluntarily open the points of entry
and exit on said street.
Thank you for your cooperation and whatever assistance that may be extended by
your association to the MMDA personnel who will be directing traffic in the area.
Finally, we are furnishing you with a copy of the handwritten instruction of the
President on the matter.
Very truly yours,
PROSPERO I. ORETA
Chairman 1
On the same day, respondent was apprised that the perimeter wall separating the
subdivision from the adjacent Kalayaan Avenue would be demolished.
On January 2, 1996, respondent instituted against petitioner before the Regional Trial
Court, Branch 136, Makati City, Civil Case No. 96-001 for injunction. Respondent prayed for
the issuance of a temporary restraining order and preliminary injunction enjoining the
opening of Neptune Street and prohibiting the demolition of the perimeter wall. The trial
court issued a temporary restraining order the following day.
On January 23, 1996, after due hearing, the trial court denied issuance of a preliminary
injunction. 2 Respondent questioned the denial before the Court of Appeals in CA-G.R. SP
No. 39549. The appellate court conducted an ocular inspection of Neptune Street 3 and on
February 13, 1996, it issued a writ of preliminary injunction enjoining the implementation of
the MMDA's proposed action. 4
On January 28, 1997, the appellate court rendered a Decision on the merits of the case
finding that the MMDA has no authority to order the opening of Neptune Street, a private
subdivision road and cause the demolition of its perimeter walls. It held that the authority is
lodged in the City Council of Makati by ordinance. The decision disposed of as follows:
WHEREFORE, the Petition is GRANTED; the challenged Order dated January 23,
1995, in Civil Case No. 96-001, is SET ASIDE and the Writ of Preliminary Injunction
issued on February 13, 1996 is hereby made permanent.
For want of sustainable substantiation, the Motion to Cite Roberto L. del Rosario in
contempt is denied. 5
SO ORDERED. 6
The Motion for Reconsideration of the decision was denied on September 28, 1998. Hence,
this recourse.
Petitioner MMDA raises the following questions:
I
HAS THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY (MMDA) THE
MANDATE TO OPEN NEPTUNE STREET TO PUBLIC TRAFFIC PURSUANT TO
ITS REGULATORY AND POLICE POWERS?
II
IS THE PASSAGE OF AN ORDINANCE A CONDITION PRECEDENT BEFORE
THE MMDA MAY ORDER THE OPENING OF SUBDIVISION ROADS TO PUBLIC
TRAFFIC?
III
IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC. ESTOPPED FROM
DENYING OR ASSAILING THE AUTHORITY OF THE MMDA TO OPEN THE
SUBJECT STREET?
IV
WAS RESPONDENT DEPRIVED OF DUE PROCESS DESPITE THE SEVERAL
MEETINGS HELD BETWEEN MMDA AND THE AFFECTED EEL-AIR RESIDENTS
AND BAVA OFFICERS?
Josef Elvin Campos
V
HAS RESPONDENT COME TO COURT WITH UNCLEAN HANDS?7
Neptune Street is owned by respondent BAVA. It is a private road inside Bel-Air Village, a
private residential subdivision in the heart of the financial and commercial district of Makati
City. It runs parallel to Kalayaan Avenue, a national road open to the general public.
Dividing the two (2) streets is a concrete perimeter wall approximately fifteen (15) feet high.
The western end of Neptune Street intersects Nicanor Garcia, formerly Reposo Street, a
subdivision road open to public vehicular traffic, while its eastern end intersects Makati
Avenue, a national road. Both ends of Neptune Street are guarded by iron gates.
Petitioner MMDA claims that it has the authority to open Neptune Street to public traffic
because it is an agent of the state endowed with police power in the delivery of basic
services in Metro Manila. One of these basic services is traffic management which involves
the regulation of the use of thoroughfares to insure the safety, convenience and welfare of
the general public. It is alleged that the police power of MMDA was affirmed by this Court in
the consolidated cases of Sangalang v. Intermediate Appellate Court. 8 From the premise
that it has police power, it is now urged that there is no need for the City of Makati to enact
an ordinance opening Neptune street to the public. 9
Police power is an inherent attribute of sovereignty. It has been defined as the power vested
by the Constitution in the legislature to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes and ordinances, either with penalties or without,
not repugnant to the Constitution, as they shall judge to be for the good and welfare of the
commonwealth, and for the subjects of the same. 10 The power is plenary and its scope is
vast and pervasive, reaching and justifying measures for public health, public safety, public
morals, and the general welfare. 11
It bears stressing that police power is lodged primarily in the National Legislature. 12 It
cannot be exercised by any group or body of individuals not possessing legislative
power. 13 The National Legislature, however, may delegate this power to the President and
administrative boards as well as the lawmaking bodies of municipal corporations or local
government units. 14 Once delegated, the agents can exercise only such legislative powers
as are conferred on them by the national lawmaking body. 15
A local government is a "political subdivision of a nation or state which is constituted by law
and has substantial control of local affairs." 16 The Local Government Code of 1991 defines
a local government unit as a "body politic and corporate." 17 — one endowed with powers as
a political subdivision of the National Government and as a corporate entity representing the
inhabitants of its territory. 18 Local government units are the provinces, cities, municipalities
and barangays. 19 They are also the territorial and political subdivisions of the state. 20
Our Congress delegated police power to the local government units in the Local
Government Code of 1991. This delegation is found in Section 16 of the same Code, known
as the general welfare clause, viz:
Sec. 16. General Welfare. — Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers
among other things, the preservation and enrichment of culture, promote health and
support the development of appropriate and self-reliant scientific and technological
preserve the comfort and convenience of their inhabitants. 21
Local government units exercise police power through their respective legislative bodies.
The legislative body of the provincial government is the sangguniang panlalawigan, that of
the city government is the sangguniang panlungsod, that of the municipal government is
the sangguniang bayan, and that of the barangay is the sangguniang barangay. The Local
Government Code of 1991 empowers the sangguniang panlalawigan, sangguniang
panlungsod and sangguniang bayan to "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the [province, city or municipality, as the case
may be], and its inhabitants pursuant to Section 16 of the Code and in the proper exercise
of the corporate powers of the [province, city municipality] provided under the Code . . .
" 22 The same Code gives the sangguniang barangay the power to "enact ordinances as
may be necessary to discharge the responsibilities conferred upon it by law or ordinance
and to promote the general welfare of the inhabitants thereon." 23
Josef Elvin Campos
Metropolitan or Metro Manila is a body composed of several local government units — i.e.,
twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila,
Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque
and Valenzuela, and the municipalities of Malabon, Navotas, Pateros, San Juan and
Taguig. With the passage of Republic Act (R. A.) No. 7924 24 in 1995, Metropolitan Manila
was declared as a "special development and administrative region" and the Administration
of "metro-wide" basic services affecting the region placed under "a development
authority" referred to as the MMDA. 25
"Metro-wide services" are those "services which have metro-wide impact and transcend
local political boundaries or entail huge expenditures such that it would not be viable for
said services to be provided by the individual local government units comprising Metro
Manila." 26 There are seven (7) basic metro-wide services and the scope of these services
cover the following: (1) development planning; (2) transport and traffic management; (3)
solid waste disposal and management; (4) flood control and sewerage management; (5)
urban renewal, zoning and land use planning, and shelter services; (6) health and
sanitation, urban protection and pollution control; and (7) public safety. The basic service of
transport and traffic management includes the following:
(b) Transport and traffic management which include the
formulation, coordination, and monitoring of policies, standards, programs and
projects to rationalize the existing transport operations, infrastructure
requirements, the use of thoroughfares, and promotion of safe and convenient
movement of persons and goods; provision for the mass transport system and the
institution of a system to regulate road users; administration and implementation of
all traffic enforcement operations, traffic engineering services and traffic education
programs, including the institution of a single ticketing system in Metropolitan
Manila;" 27
In the delivery of the seven (7) basic services, the MMDA has the following powers and
functions:
Sec. 5. Functions and powers of the Metro Manila Development Authority. — The
MMDA shall:
(a) Formulate, coordinate and regulate the implementation of medium and long-term
plans and programs for the delivery of metro-wide services, land use and physical
development within Metropolitan Manila, consistent with national development
objectives and priorities;
(b) Prepare, coordinate and regulate the implementation of medium-term investment
programs for metro-wide services which shall indicate sources and uses of funds for
priority programs and projects, and which shall include the packaging of projects and
presentation to funding institutions;
(c) Undertake and manage on its own metro-wide programs and projects for the
delivery of specific services under its jurisdiction, subject to the approval of the
Council. For this purpose, MMDA can create appropriate project management
offices;
(d) Coordinate and monitor the implementation of such plans, programs and projects
in Metro Manila; identify bottlenecks and adopt solutions to problems of
implementation;
(e) The MMDA shall set the policies concerning traffic in Metro Manila, and shall
coordinate and regulate the implementation of all programs and projects concerning
traffic management, specifically pertaining to enforcement, engineering and
education. Upon request, it shall be extended assistance and cooperation, including
but not limited to, assignment of personnel, by all other government agencies and
offices concerned;
(f) Install and administer a single ticketing system, fix, impose and collect fines and
penalties for all kinds of violations of traffic rules and regulations, whether moving or
non-moving in nature, and confiscate and suspend or revoke drivers' licenses in the
enforcement of such traffic laws and regulations, the provisions of RA 4136 and PD
1605 to the contrary notwithstanding. For this purpose, the Authority shall impose all
traffic laws and regulations in Metro Manila, through its traffic operation center, and
may deputize members of the PNP, traffic enforcers of local government units, duly
licensed security guards, or members of non-governmental organizations to whom
may be delegated certain authority, subject to such conditions and requirements as
the Authority may impose; and
(g) Perform other related functions required to achieve the objectives of the MMDA,
including the undertaking of delivery of basic services to the local government units,
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when deemed necessary subject to prior coordination with and consent of the local
government unit concerned.
The implementation of the MMDA's plans, programs and projects is undertaken by the local
government units, national government agencies, accredited people's organizations, non-
governmental organizations, and the private sector as well as by the MMDA itself. For this
purpose, the MMDA has the power to enter into contracts, memoranda of agreement and
other arrangements with these bodies for the delivery of the required services Metro
Manila. 28
The governing board of the MMDA is the Metro Manila Council. The Council is composed of
the mayors of the component 12 cities and 5 municipalities, the president of the Metro
Manila Vice-Mayors' League and the president of the Metro Manila Councilors'
League. 29 The Council is headed by Chairman who is appointed by the President and
vested with the rank of cabinet member. As the policy-making body of the MMDA, the Metro
Manila Council approves metro-wide plans, programs and projects, and issues the
necessary rules and regulations for the implementation of said plans; it approves the annual
budget of the MMDA and promulgate the rules and regulations for the delivery of basic
services, collection of service and regulatory fees, fines and penalties. These functions are
particularly enumerated as follows:
Sec. 6. Functions of the Metro Manila Council. —
(a) The Council shall be the policy-making body of the MMDA;
(b) It shall approve metro-wide plans, programs and projects and issue rules and
regulations deemed necessary by the MMDA to carry out the purposes of this Act;
(c) It may increase the rate of allowances and per diems of the members of the
Council to be effective during the term of the succeeding Council. It shall fix the
compensation of the officers and personnel of the MMDA, and approve the annual
budget thereof for submission to the Department of Budget and Management (DBM);
(d) It shall promulgate rules and regulations and set policies and standards for
metro-wide application governing the delivery of basic services, prescribe and collect
service and regulatory fees, and impose and collect fines and penalties.
Clearly, the scope of the MMDA's function is limited to the delivery of the seven (7) basic
services. One of these is transport and traffic management which includes the formulation
and monitoring of policies, standards and projects to rationalize the existing transport
operations, infrastructure requirements, the use of thoroughfares and promotion of the safe
movement of persons and goods. It also covers the mass transport system and the
institution of a system of road regulation, the administration of all traffic enforcement
operations, traffic engineering services and traffic education programs, including the
institution of a single ticketing system in Metro Manila for traffic violations. Under the
service, the MMDA is expressly authorized "to set the policies concerning traffic" and
"coordinate and regulate the implementation of all traffic management programs." In
addition, the MMDA may "install and administer a single ticketing system," fix, impose and
collect fines and penalties for all traffic violations.
It will be noted that the powers of the MMDA are limited to the following acts: formulation,
coordination, regulation, implementation, preparation, management, monitoring, setting of
policies, installation of a system and administration. There is no syllable in R.A. No. 7924
that grants the MMDA police power, let alone legislative power. Even the Metro Manila
Council has not been delegated any legislative power. Unlike the legislative bodies of the
local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or
its Council to "enact ordinances, approve resolutions appropriate funds for the general
welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself,
"development authority." 30 It is an agency created for the purpose of laying down policies
and coordinating with the various national government agencies, people's organizations,
non-governmental organizations and the private sector for the efficient and expeditious
delivery of basic services in the vast metropolitan area. All its functions are administrative in
nature and these are actually summed up in the charter itself, viz:
Sec. 2. Creation of the Metropolitan Manila Development Authority. — . . . .
The MMDA shall perform planning, monitoring and coordinative functions, and in the
process exercise regulatory and supervisory authority over the delivery of metro-
wide services within Metro Manila, without diminution of the autonomy of the local
government units concerning purely local matters. 31
Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate Appellate
Court 32 where we upheld a zoning ordinance issued by the Metro Manila Commission
(MMC), the predecessor of the MMDA, as an exercise of police power. The
first Sangalang decision was on the merits of the petition, 33 while the second decision
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denied reconsideration of the first case and in addition discussed the case of Yabut v. Court
of Appeals. 34
Sangalang v. IAC involved five (5) consolidated petitions filed by respondent BAVA and
three residents of Bel-Air Village against other residents of the Village and the Ayala
Corporation, formerly the Makati Development Corporation, as the developer of the
subdivision. The petitioners sought to enforce certain restrictive easements in the deeds of
sale over their respective lots in the subdivision. These were the prohibition on the setting
up of commercial and advertising signs on the lots, and the condition that the lots be used
only for residential purposes. Petitioners alleged that respondents, who were residents
along Jupiter Street of the subdivision, converted their residences into commercial
establishments in violation of the "deed restrictions," and that respondent Ayala Corporation
ushered in the full commercialization" of Jupiter Street by tearing down the perimeter wall
that separated the commercial from the residential section of the village. 35
The petitions were dismissed based on Ordinance No. 81 of the Municipal Council of Makati
and Ordinance No. 81-01 of the Metro Manila Commission (MMC). Municipal Ordinance No.
81 classified Bel-Air Village as a Class A Residential Zone, with its boundary in the south
extending to the center line of Jupiter Street. The Municipal Ordinance was adopted by the
MMC under the Comprehensive Zoning Ordinance for the National Capital Region and
promulgated as MMC Ordinance No. 81-01. Bel-Air Village was indicated therein as
bounded by Jupiter Street and the block adjacent thereto was classified as a High Intensity
Commercial Zone. 36
We ruled that since both Ordinances recognized Jupiter Street as the boundary between
Bel-Air Village and the commercial district, Jupiter Street was not for the exclusive benefit of
Bel-Air residents. We also held that the perimeter wall on said street was constructed not to
separate the residential from the commercial blocks but simply for security reasons, hence,
in tearing down said wall, Ayala Corporation did not violate the "deed restrictions" in the
deeds of sale.
We upheld the ordinances, specifically MMC Ordinance No. 81-01, as a legitimate exercise
of police power. 37 The power of the MMC and the Makati Municipal Council to enact zoning
ordinances for the general welfare prevailed over the "deed restrictions".
In the second Sangalang/Yabut decision, we held that the opening of Jupiter Street was
warranted by the demands of the common good in terms of "traffic decongestion and public
convenience." Jupiter was opened by the Municipal Mayor to alleviate traffic congestion
along the public streets adjacent to the Village. 38 The same reason was given for the
opening to public vehicular traffic of Orbit Street, a road inside the same village. The
destruction of the gate in Orbit Street was also made under the police power of the
municipal government. The gate, like the perimeter wall along Jupiter, was a public
nuisance because it hindered and impaired the use of property, hence, its summary
abatement by the mayor was proper and legal. 39
Contrary to petitioner's claim, the two Sangalang cases do not apply to the case at
bar. Firstly, both involved zoning ordinances passed by the municipal council of Makati and
the MMC. In the instant case, the basis for the proposed opening of Neptune Street is
contained in the notice of December 22, 1995 sent by petitioner to respondent BAVA,
through its president. The notice does not cite any ordinance or law, either by the
Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the
proposed opening of Neptune Street. Petitioner MMDA simply relied on its authority under
its charter "to rationalize the use of roads and/or thoroughfares for the safe and convenient
movement of persons." Rationalizing the use of roads and thoroughfares is one of the acts
that fall within the scope of transport and traffic management. By no stretch of the
imagination, however, can this be interpreted as an express or implied grant of ordinance-
making power, much less police power.
Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC
is the forerunner of the present MMDA, an examination of Presidential Decree (P. D.) No.
824, the charter of the MMC, shows that the latter possessed greater powers which were
not bestowed on the present MMDA.
Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824. It
comprised the Greater Manila Area composed of the contiguous four (4) cities of Manila,
Quezon, Pasay and Caloocan, and the thirteen (13) municipalities of Makati, Mandaluyong,
San Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros, Paranaque, Marikina, Muntinlupa
and Taguig in the province of Rizal, and Valenzuela in the province of
Bulacan. 40 Metropolitan Manila was created as a response to the finding that the rapid
growth of population and the increase of social and economic requirements in these areas
demand a call for simultaneous and unified development; that the public services rendered
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by the respective local governments could be administered more efficiently and
economically if integrated under a system of central planning; and this coordination,
"especially in the maintenance of peace and order and the eradication of social and
economic ills that fanned the flames of rebellion and discontent [were] part of reform
measures under Martial Law essential to the safety and security of the State." 41
Metropolitan Manila was established as a "public corporation" with the following powers:
Sec. 1. Creation of the Metropolitan Manila. — There is hereby created a public
corporation, to be known as the Metropolitan Manila, vested with powers and
attributes of a corporation including the power to make contracts, sue and be
sued, acquire, purchase, expropriate, hold, transfer and dispose of property and
such other powers as are necessary to carry out its purposes. The Corporation shall
be administered by a Commission created under this Decree. 42
The administration of Metropolitan Manila was placed under the Metro Manila Commission
(MMC) vested with the following powers:
Sec. 4. Powers and Functions of the Commission. — The Commission shall have the
following powers and functions:
1. To act as a central government to establish and administer programs and provide
services common to the area;
2. To levy and collect taxes and special assessments, borrow and expend money
and issue bonds, revenue certificates, and other obligations of indebtedness.
Existing tax measures should, however, continue to be operative until otherwise
modified or repealed by the Commission;
3. To charge and collect fees for the use of public service facilities;
4. To appropriate money for the operation of the metropolitan government and
review appropriations for the city and municipal units within its jurisdiction with
authority to disapprove the same if found to be not in accordance with the
established policies of the Commission, without prejudice to any contractual
obligation of the local government units involved existing at the time of approval of
this Decree;
5. To review, amend, revise or repeal all ordinances, resolutions and acts of cities
and municipalities within Metropolitan Manila;
6. To enact or approve ordinances, resolutions and to fix penalties for any violation
thereof which shall not exceed a fine of P10,000.00 or imprisonment of six years or
both such fine and imprisonment for a single offense;
7. To perform general administrative, executive and policy-making functions;
8. To establish a fire control operation center, which shall direct the fire services of
the city and municipal governments in the metropolitan area;
9. To establish a garbage disposal operation center, which shall direct garbage
collection and disposal in the metropolitan area;
10. To establish and operate a transport and traffic center, which shall direct traffic
activities;
11. To coordinate and monitor governmental and private activities pertaining to
essential services such as transportation, flood control and drainage, water supply
and sewerage, social, health and environmental services, housing, park
development, and others;
12. To insure and monitor the undertaking of a comprehensive social, economic and
physical planning and development of the area;
13. To study the feasibility of increasing barangay participation in the affairs of their
respective local governments and to propose to the President of the Philippines
definite programs and policies for implementation;
14. To submit within thirty (30) days after the close of each fiscal year an annual
report to the President of the Philippines and to submit a periodic report whenever
deemed necessary; and
15. To perform such other tasks as may be assigned or directed by the President of
the Philippines.
The MMC was the "central government" of Metro Manila for the purpose of establishing and
administering programs providing services common to the area. As a "central government"
it had the power to levy and collect taxes and special assessments, the power to charge
and collect fees; the power to appropriate money for its operation, and at the same time,
review appropriations for the city and municipal units within its jurisdiction. It was bestowed
the power to enact or approve ordinances, resolutions and fix penalties for violation of such
ordinances and resolutions. It also had the power to review, amend, revise or repeal all
Josef Elvin Campos
ordinances, resolutions and acts of any of the four (4) cities and thirteen (13) municipalities
comprising Metro Manila.
P.D. No. 824 further provided:
Sec. 9. Until otherwise provided, the governments of the four cities and thirteen
municipalities in the Metropolitan Manila shall continue to exist in their present form
except as may be inconsistent with this Decree. The members of the existing city
and municipal councils in Metropolitan Manila shall, upon promulgation of this
Decree, and until December 31, 1975, become members of the Sangguniang Bayan
which is hereby created for every city and municipality of Metropolitan Manila.
In addition, the Sangguniang Bayan shall be composed of as many barangay
captains as may be determined and chosen by the Commission, and such number of
representatives from other sectors of the society as may be appointed by the
President upon recommendation of the Commission.
x x x x x x x x x
The Sangguniang Bayan may recommend to the Commission ordinances,
resolutions or such measures as it may adopt; Provided, that no such ordinance,
resolution or measure shall become effective, until after its approval by the
Commission; and Provided further, that the power to impose taxes and other levies,
the power to appropriate money and the power to pass ordinances or resolutions
with penal sanctions shall be vested exclusively in the Commission.
The creation of the MMC also carried with it the creation of the Sangguniang Bayan . This
was composed of the members of the component city and municipal councils, barangay
captains chosen by the MMC and sectoral representatives appointed by the President.
The Sangguniang Bayan had the power to recommend to the MMC the adoption of
ordinances, resolutions or measures. It was the MMC itself, however, that possessed
legislative powers. All ordinances, resolutions and measures recommended by
the Sangguniang Bayan were subject to the MMC's approval. Moreover, the power to
impose taxes and other levies, the power to appropriate money, and the power to pass
ordinances or resolutions with penal sanctions were vested exclusively in the MMC.
Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed
legislative police powers. Whatever legislative powers the component cities and
municipalities had were all subject to review and approval by the MMC.
After President Corazon Aquino assumed power, there was a clamor to restore the
autonomy of the local government units in Metro Manila. Hence, Sections 1 and 2 of Article
X of the 1987 Constitution provided:
Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as herein provided.
The Constitution, however, recognized the necessity of creating metropolitan regions not
only in the existing National Capital Region but also in potential equivalents in the Visayas
and Mindanao. 43 Section 11 of the same Article X thus provided:
Sec. 11. The Congress may, by law, create special metropolitan political
subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component
cities and municipalities shall retain their basic autonomy and shall be entitled to
their own local executives and legislative assemblies. The jurisdiction of the
metropolitan authority that will thereby be created shall be limited to basic services
requiring coordination.
Constitution itself expressly provides that Congress may, by law, create "special
metropolitan political subdivisions" which shall be subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected; the jurisdiction of this
subdivision shall be limited to basic services requiring coordination; and the cities and
municipalities comprising this subdivision shall retain their basic services requiring
coordination; and the cities and municipalities comprising this subdivision shall retain their
basic autonomy and their own local executive and legislative assemblies. 44 Pending
enactment of this law, the Transitory Provisions of the Constitution gave the President of the
Philippines the power to constitute the Metropolitan Authority, viz:
Sec. 8. Until otherwise provided by Congress, the President may constitute the
Metropolitan Authority to be composed of the heads of all local government units
comprising the Metropolitan Manila area. 45
In 1990, President Aquino issued Executive Order (E. O.) No. 392 and constituted the
Metropolitan Manila Authority (MMA). The powers and functions of the MMC were devolved
to the MMA. 46 It ought to be stressed, however, that not all powers and functions of the
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MMC were passed to the MMA. The MMA's power was limited to the "delivery of basic
urban services requiring coordination in Metropolitan Manila." 47 The MMA's governing body,
the Metropolitan Manila Council, although composed of the mayors of the component cities
and municipalities, was merely given power of: (1) formulation of policies on the delivery of
basic services requiring coordination and consolidation; and (2) promulgation resolutions
and other issuances, approval of a code of basic services and the exercise of its rule-
making power. 48
Under the 1987 Constitution, the local government units became primarily responsible for
the governance of their respective political subdivisions. The MMA's jurisdiction was
limited to addressing common problems involving basic services that transcended local
boundaries. It did not have legislative power. Its power was merely to provide the local
government units technical assistance in the preparation of local development plans. Any
semblance of legislative power it had was confined to a "review [of] legislation proposed by
the local legislative assemblies to ensure consistency among local governments and with
the comprehensive development plan of Metro Manila," and to "advise the local
governments accordingly." 49
When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and
administrative region" and the MMDA a "special development authority" whose functions
were "without prejudice to the autonomy of the affected local government units." The
character of the MMDA was clearly defined in the legislative debates enacting its charter.
R.A. No. 7924 originated as House Bill No. 14170/11116 and was introduced by several
legislators led by Dante Tinga, Roilo Golez and Feliciano Belmonte. It was presented to the
House of Representatives by the Committee on Local Governments chaired by
Congressman Ciriaco R. Alfelor. The bill was a product of Committee consultations with the
local government units in the National Capital Region (NCR), with former Chairmen of the
MMC and MMA, 50 and career officials of said agencies. When the bill was first taken up by
the Committee on Local Governments, the following debate took place:
THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me explain. This has been
debated a long time ago, you know. It's a special . . . we can create a special
metropolitan political subdivision.
Actually, there are only six (6) political subdivisions provided for in the Constitution:
barangay, municipality, city, province, and we have the Autonomous Region of
Mindanao and we have the Cordillera. So we have 6. Now. . . . .
HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the case of the Autonomous
Region, that is also specifically mandated by the Constitution.
THE CHAIRMAN: That's correct. But it is considered to be a political subdivision.
What is the meaning of a political subdivision? Meaning to say, that it has its own
government, it has its own political personality, it has the power to tax, and all
governmental powers: police power and everything. All right. Authority is different;
because it does not have its own government. It is only a council, it is an
organization of political subdivision, powers, "no, which is not imbued with any
political power.
If you go over Section 6, where the powers and functions of the Metro Manila
Development Authority, it is purely coordinative. And it provides here that the council
is policy-making. All right.
Under the Constitution is a Metropolitan Authority with coordinative power. Meaning
to say, it coordinates all of the different basic services which have to be delivered to
the constituency. All right.
There is now a problem. Each local government unit is given its respective . . . as a
political subdivision. Kalookan has its powers, as provided for and protected and
guaranteed by the Constitution. All right, the exercise. However, in the exercise of
that power, it might be deleterious and disadvantageous to other local government
units. So, we are forming an authority where all of these will be members and then
set up a policy in order that the basic services can be effectively coordinated. All
right.
Of course, we cannot deny that the MMDA has to survive. We have to provide some
funds, resources. But it does not possess any political power. We do not elect the
Governor. We do not have the power to tax. As a matter of fact, I was trying to
intimate to the author that it must have the power to sue and be sued because it
coordinates. All right. It coordinates practically all these basic services so that the
flow and the distribution of the basic services will be continuous. Like traffic, we
cannot deny that. It's before our eyes. Sewerage, flood control, water system, peace
and order, we cannot deny these. It's right on our face. We have to look for a
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solution. What would be the right solution? All right, we envision that there should be
a coordinating agency and it is called an authority. All right, if you do not want to call
it an authority, it's alright. We may call it a council or maybe a management agency.
x x x x x x x x x 51
Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA
is that given to the Metro Manila Council to promulgate administrative rules and regulations
in the implementation of the MMDA's functions. There is no grant of authority to enact
ordinances and regulations for the general welfare of the inhabitants of the metropolis. This
was explicitly stated in the last Committee deliberations prior to the bill's presentation to
Congress. Thus:
THE CHAIRMAN: Yeah, but we have to go over the suggested revision. I think this
was already approved before, but it was reconsidered in view of the proposals, set-
up, to make the MMDA stronger. Okay, so if there is no objection to paragraph "f". . .
And then next is paragraph "b," under Section 6. "It shall approve metro-wide plans,
programs and projects and issue ordinances or resolutions deemed necessary by
the MMDA to carry out the purposes of this Act." Do you have the powers? Does the
MMDA... because that takes the form of a local government unit, a political
subdivision.
HON. [Feliciano] BELMONTE: Yes, I believe so, your Honor. When we say that it
has the policies, it's very clear that those policies must be followed. Otherwise,
what's the use of empowering it to come out with policies. Now, the policies may be
in the form of a resolution or it may be in the form of a ordinance. The term
"ordinance" in this case really gives it more teeth, your honor. Otherwise, we are
going to see a situation where you have the power to adopt the policy but you cannot
really make it stick as in the case now, and I think here is Chairman Bunye. I think he
will agree that that is the case now. You've got the power to set a policy, the body
wants to follow your policy, then we say let's call it an ordinance and see if they will
not follow it.
THE CHAIRMAN: That's very nice. I like that. However, there is a constitutional
impediment.1âwphi1 You are making this MMDA a political subdivision. The creation
of the MMDA would be subject to a plebiscite. That is what I'm trying to avoid. I've
been trying to avoid this kind of predicament. Under the Constitution it states: if it is a
political subdivision, once it is created it has to be subject to a plebiscite. I'm trying to
make this as administrative. That's why we place the Chairman as a cabinet rank.
HON. BELMONTE: All right, Mr. Chairman, okay, what you are saying there is . . . . .
THE CHAIRMAN: In setting up ordinances, it is a political exercise, Believe me.
HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into issuances of rules and
regulations. That would be . . . it shall also be enforced.
HON. BELMONTE: Okay, I will . . . .
HON. LOPEZ: And you can also say that violation of such rule, you impose a
sanction. But you know, ordinance has a different legal connotation.
HON. BELMONTE: All right, I defer to that opinion, your Honor.
THE CHAIRMAN: So instead of ordinances, say rules and regulations.
HON. BELMONTE: Or resolutions. Actually, they are actually considering resolutions
now.
THE CHAIRMAN: Rules and resolutions.
HON. BELMONTE: Rules, regulations and resolutions. 52
The draft of H. B. No. 14170/11116 was presented by the Committee to the House of
Representatives. The explanatory note to the bill stated that the proposed MMDA is a
"development authority" which is a "national agency, not a political government unit." 53 The
explanatory note was adopted as the sponsorship speech of the Committee on Local
Governments. No interpellations or debates were made on the floor and no amendments
introduced. The bill was approved on second reading on the same day it was presented. 54
When the bill was forwarded to the Senate, several amendments were
made.1âwphi1 These amendments, however, did not affect the nature of the MMDA as
originally conceived in the House of Representatives. 55
It is thus beyond doubt that the MMDA is not a local government unit or a public corporation
endowed with legislative power. It is not even a "special metropolitan political subdivision"
as contemplated in Section 11, Article X of the Constitution. The creation of a "special
metropolitan political subdivision" requires the approval by a majority of the votes cast in a
plebiscite in the political units directly affected." 56 R. A. No. 7924 was not submitted to the
inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official
elected by the people, but appointed by the President with the rank and privileges of a
Josef Elvin Campos
cabinet member. In fact, part of his function is to perform such other duties as may be
assigned to him by the President, 57 whereas in local government units, the President
merely exercises supervisory authority. This emphasizes the administrative character of the
MMDA.
Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A.
No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of
the community. It is the local government units, acting through their respective legislative
councils, that possess legislative power and police power. In the case at bar, the
Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering
the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal
and the respondent Court of Appeals did not err in so ruling. We desist from ruling on the
other issues as they are unnecessary.
We stress that this decision does not make light of the MMDA's noble efforts to solve the
chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic bottlenecks plague
the metropolis. Even our once sprawling boulevards and avenues are now crammed with
cars while city streets are clogged with motorists and pedestrians. Traffic has become a
social malaise affecting our people's productivity and the efficient delivery of goods and
services in the country. The MMDA was created to put some order in the metropolitan
transportation system but unfortunately the powers granted by its charter are limited. Its
good intentions cannot justify the opening for public use of a private street in a private
subdivision without any legal warrant. The promotion of the general welfare is not
antithetical to the preservation of the rule of law.1âwphi1.nêt
IN VIEW WHEREOF, the petition is denied. The Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 39549 are affirmed.
SO ORDERED.
Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur.
Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc. (G.R. No. 148339,
23 February 2005)
G.R. No. 148339 February 23, 2005
LUCENA GRAND CENTRAL TERMINAL, INC., petitioner,
vs.
JAC LINER, INC., Respondent.
DECISION
CARPIO MORALES, J.:
Respondent, JAC Liner, Inc., a common carrier operating buses which ply various routes to
and from Lucena City, assailed, via a petition for prohibition and injunction 1 against the City
of Lucena, its Mayor, and the Sangguniang Panlungsod of Lucena before the Regional Trial
Court (RTC) of Lucena City, City Ordinance Nos. 1631 and 1778 as unconstitutional on the
ground that, inter alia, the same constituted an invalid exercise of police power, an undue
taking of private property, and a violation of the constitutional prohibition against
monopolies. The salient provisions of the ordinances are:
Ordinance No. 16312
AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL TERMINAL, INC., A
FRANCHISE TO CONSTRUCT, FINANCE, ESTABLISH, OPERATE AND MAINTAIN A
COMMON BUS-JEEPNEY TERMINAL FACILITY IN THE CITY OF LUCENA
xxx
SECTION 1. – There is hereby granted to the Lucena Grand Central Terminal, Inc., its
successors or assigns, hereinafter referred to as the "grantee", a franchise to construct,
finance, establish, operate, and maintain a common bus-jeepney terminal facility in the City
of Lucena.
SECTION 2. – This franchise shall continue for a period of twenty-five years, counted from
the approval of this Ordinance, and renewable at the option of the grantee for another
period of twenty-five (25) years upon such expiration.
xxx
SECTION 4. – Responsibilities and Obligations of the City Government of Lucena. – During
the existence of the franchise, the City Government of Lucena shall have the following
responsibilities and obligations:
xxx
(c) It shall not grant any third party any privilege and/or concession to operate a bus, mini-
bus and/or jeepney terminal.
xxx
Josef Elvin Campos
Ordinance No. 17783
AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY OF LUCENA OF ALL
BUSES, MINI-BUSES AND OUT-OF-TOWN PASSENGER JEEPNEYS AND FOR THIS
PURPOSE, AMENDING ORDINACE NO. 1420, SERIES OF 1993, AND ORDINANCE NO.
1557, SERIES OF 1995
xxx
SECTION 1. – The entrance to the City of Lucena of all buses, mini-buses and out-of-town
passenger jeepneys is hereby regulated as follows:
(a) All buses, mini-buses and out-of-town passenger jeepneys shall be prohibited
from entering the city and are hereby directed to proceed to the common terminal,
for picking-up and/or dropping of their passengers.
(b) All temporary terminals in the City of Lucena are hereby declared
inoperable starting from the effectivity of this ordinance.
xxx
SECTION 3. – a) Section 1 of Ordinance No. 1557, Series of 1995, is hereby amended to
read as follows:
Buses, mini-buses, and jeepney type mini-buses from other municipalities and/or local
government units going to Lucena City are directed to proceed to the Common Terminal
located at Diversion Road, Brgy. Ilayang Dupay, to unload and load passengers.
xxx
c) Section 3 of Ordinance No. 1557, Series of 1995, is hereby amended to read as
follows:
Passenger buses, mini-buses, and jeepney type mini-buses coming from other
municipalities and/or local government units shall utilize the facilities of the Lucena
Grand Central Terminal at Diversion Road, Brgy. Ilayang Dupay, this City, and no
other terminals shall be situated inside or within the City of Lucena;
d) Section 4 of Ordinance No. 1557, Series of 1995, is hereby amended to read as
follows:
Passenger buses, mini-buses, and jeepney type mini-buses coming from other
municipalities and/or local government units shall avail of the facilities of the Lucena
Grand Central Terminal which is hereby designated as the officially sanctioned
common terminal for the City of Lucena;
e) Section 5 of Ordinance No. 1557, Series of 1995, is hereby amended to read as
follows:
The Lucena Grand Central Terminal is the permanent common terminal as this is the
entity which was given the exclusive franchise by the Sangguniang Panglungsod und
er Ordinance No. 1631; (Emphasis and underscoring supplied)
These ordinances, by granting an exclusive franchise for twenty five years, renewable for
another twenty five years, to one entity for the construction and operation of one common
bus and jeepney terminal facility in Lucena City, to be located outside the city proper, were
professedly aimed towards alleviating the traffic congestion alleged to have been caused by
the existence of various bus and jeepney terminals within the city, as the "Explanatory
Note"-Whereas Clause adopting Ordinance No. 1778 states:
WHEREAS, in line with the worsening traffic condition of the City of Lucena, and with the
purpose of easing and regulating the flow of the same, it is imperative that the Buses, Mini-
Buses and out-of-town jeepneys be prohibited from maintaining terminals within the City,
but instead directing to proceed to the Lucena Grand Central Terminal for purposes of
picking-up and/or dropping off their passengers; 4
Respondent, who had maintained a terminal within the city, was one of those affected by
the ordinances.
Petitioner, Lucena Grand Central Terminal, Inc., claiming legal interest as the grantee of the
exclusive franchise for the operation of the common terminal, 5 was allowed to intervene in
the petition before the trial court.
In the hearing conducted on November 25, 1998, all the parties agreed to dispense with the
presentation of evidence and to submit the case for resolution solely on the basis of the
pleadings filed.6
By Order of March 31, 1999,7 Branch 54 of the Lucena RTC rendered judgment, the
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered, as follows:
1. Declaring City Ordinance No. 1631 as valid, having been issued in the exercise of
the police power of the City Government of Lucena insofar as the grant of franchise
to the Lucena Grand Central Terminal, Inc., to construct, finance, establish, operate
and maintain common bus-jeepney terminal facility in the City of Lucena;
Josef Elvin Campos
2. But however, declaring the provision of Sec. 4(c) of Ordinance No. 1631 to the
effect that the City Government shall not grant any third party any privilege and/or
concession to operate a bus, mini-bus and/or jeepney terminal, as illegal and ultra
vires because it contravenes the provisions of Republic Act No. 7160, otherwise
known as "The Local Government Code";
3. Declaring City Ordinance No. 1778 as null and void, the same being also an ultra
vires act of the City Government of Lucena arising from an invalid, oppressive and
unreasonable exercise of the police power, more specifically, declaring illegal
[sections 1(b), 3(c) and 3(e)];
4. Ordering the issuance of a Writ of Prohibition and/or Injunction directing the
respondents public officials, the City Mayor and the Sangguniang Panglungsod of
Lucena, to cease and desist from implementing Ordinance No. 1778 insofar as
said ordinance prohibits or curtails petitioner from maintaining and operating
its own bus terminal subject to the conditions provided for in Ordinance No. 1557,
Sec. 3, which authorizes the construction of terminal outside the poblacion of Lucena
City; and likewise, insofar as said ordinance directs and compels the petitioner
to use the Lucena Grand Central Terminal Inc., and furthermore, insofar as it
declares that no other terminals shall be situated, constructed, maintained or
established inside or within the City of Lucena; and furthermore,
5. The Motion to Dismiss filed by the Intervenor, Lucena Grand Central Terminal
Inc., dated October 19, 1998, is hereby DENIED for lack of merit.
SO ORDERED. (Emphasis and underscoring supplied)8
Petitioner’s Motion for Reconsideration9 of the trial court’s order having been denied by
Order of August 6, 1999,10 it elevated it via petition for review under Rule 45 before this
Court.11 This Court, by Resolution of November 24, 1999,12 referred the petition to the Court
of Appeals with which it has concurrent jurisdiction, no special and important reason having
been cited for it to take cognizance thereof in the first instance.
By Decision of December 15, 2000,13 the appellate court dismissed the petition and affirmed
the challenged orders of the trial court. Its motion for reconsideration 14 having been denied
by the appellate court by Resolution dated June 5, 2001, 15 petitioner once again comes to
this Court via petition for review, 16 this time assailing the Decision and Resolution of the
Court of Appeals.
Decision on the petition hinges on two issues, to wit: (1) whether the trial court has
jurisdiction over the case, it not having furnished the Office of the Solicitor General copy of
the orders it issued therein, and (2) whether the City of Lucena properly exercised its police
power when it enacted the subject ordinances.
Petitioner argues that since the trial court failed to serve a copy of its assailed orders upon
the Office of the Solicitor General, it never acquired jurisdiction over the case, it
citing Section 22, Rule 3 of the Rules which provides:
SEC. 22. Notice to the Solicitor General.—In any action involving the validity of any treaty,
law, ordinance, executive order, presidential decree, rules or regulations, the court in its
discretion, may require the appearance of the Solicitor General who may be heard in
person or through representative duly designated by him. (Emphasis and underscoring
supplied)
Furthermore, petitioner invokes Sections 3 and 4 of Rule 63 which respectively provide:
SEC. 3. Notice on Solicitor General. – In any action which involves the validity of a statute,
executive order or regulation, or any other governmental regulation, the Solicitor General
shall be notified by the party assailing the same and shall be entitled to be heard upon such
question.
SEC. 4. Local government ordinances. – In any action involving the validity of a local
government ordinance, the corresponding prosecutor or attorney of the local government
unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged
to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard .
Nowhere, however, is it stated in the above-quoted rules that failure to notify the Solicitor
General about the action is a jurisdictional defect.
In fact, Rule 3, Section 22 gives the courts in any action involving the "validity" of
any ordinance, inter alia, "discretion" to notify the Solicitor General.
Section 4 of Rule 63, which more specifically deals with cases assailing the constitutionality,
not just the validity, of a local government ordinance, directs that the Solicitor General
"shall also be notified and entitled to be heard." Who will notify him, Sec. 3 of the same rule
provides — it is the party which is assailing the local government’s ordinance.
Josef Elvin Campos
More importantly, however, this Court finds that no procedural defect, fatal or otherwise,
attended the disposition of the case. For respondent actually served a copy of its petition
upon the Office of the Solicitor General on October 1, 1998, two days after it was filed. The
Solicitor General has issued a Certification to that effect. 17 There was thus compliance with
above-quoted rules.
Respecting the issue of whether police power was properly exercised when the subject
ordinances were enacted: As with the State, the local government may be considered as
having properly exercised its police power only if the following requisites are met: (1) the
interests of the public generally, as distinguished from those of a particular class, require
the interference of the State, and (2) the means employed are reasonably necessary for the
attainment of the object sought to be accomplished and not unduly oppressive upon
individuals. Otherwise stated, there must be a concurrence of a lawful subject and lawful
method.18
That traffic congestion is a public, not merely a private, concern, cannot be gainsaid.
In Calalang v. Williams19 which involved a statute authorizing the Director of Public Works to
promulgate rules and regulations to regulate and control traffic on national roads, this Court
held:
In enacting said law, therefore, the National Assembly was prompted by considerations
of public convenience and welfare. It was inspired by a desire to relieve congestion of
traffic, which is, to say the least, a menace to public safety. Public welfare, then, lies at the
bottom of the enactment of said law, and the state in order to promote the general welfare
may interfere with personal liberty, with property, and with business and
occupations.20 (Emphasis supplied)
The questioned ordinances having been enacted with the objective of relieving traffic
congestion in the City of Lucena, they involve public interest warranting the interference of
the State. The first requisite for the proper exercise of police power is thus present.
Respondent’s suggestion to have this Court look behind the explicit objective of the
ordinances which, to it, was actually to benefit the private interest of petitioner by coercing
all bus operators to patronize its terminal does not lie. 21 Lim v. Pacquing22 instructs:
. . . [T]his Court cannot look into allegations that PD No. 771 was enacted to benefit a select
group which was later given authority to operate the jai-alai under PD No. 810. The
examination of legislative motivation is generally prohibited. (Palmer v. Thompson, 403 U.S.
217, 29 L. Ed. 2d 438 [1971] per Black, J.) There is, in the first place, absolute lack of
evidence to support ADC’s allegation of improper motivation in the issuance of PD No. 771.
In the second place, as already averred, this Court cannot go behind the expressed and
proclaimed purposes of PD No. 771, which are reasonable and even laudable.
(Underscoring supplied)23
This leaves for determination the issue of whether the means employed by the Lucena
Sangguniang Panlungsod to attain its professed objective were reasonably necessary and
not unduly oppressive upon individuals.
With the aim of localizing the source of traffic congestion in the city to a single location, 24 the
subject ordinances prohibit the operation of all bus and jeepney terminals within Lucena,
including those already existing, and allow the operation of only one common terminal
located outside the city proper, the franchise for which was granted to petitioner. The
common carriers plying routes to and from Lucena City are thus compelled to close down
their existing terminals and use the facilities of petitioner.
In De la Cruz v. Paras,25 this Court declared unconstitutional an ordinance characterized by
overbreadth. In that case, the Municipality of Bocaue, Bulacan prohibited the operation of all
night clubs, cabarets and dance halls within its jurisdiction for the protection of public
morals. Held the Court:
It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qua
lify under the term reasonable. The objective of fostering public morals, a worthy and desira
ble end can be attained by a measure that does not encompass too wide a field. Certainly t
he ordinance on its face is characterized by overbreadth. The purpose sought to be achieve
d could have been attained by reasonable restrictions rather than by an absolute prohibition
. The admonition in Salaveria should be heeded: "The Judiciary should not lightly set aside
legislative action when there is not a clear invasion of personal or property rights under the
guise of police regulation." It is clear that in the guise of a police regulation, there was in this
instance a clear invasion of personal or property rights, personal in the case of those
individuals desirous of patronizing those night clubs and property in terms of the
investments made and salaries to be earned by those therein employed. (Underscoring
supplied)26
Josef Elvin Campos
In Lupangco v. Court of Appeals,27 this Court, in declaring unconstitutional the resolution
subject thereof, advanced a similar consideration. That case involved a resolution issued by
the Professional Regulation Commission which prohibited examinees from attending review
classes and receiving handout materials, tips, and the like three days before the date of
examination in order to preserve the integrity and purity of the licensure examinations in
accountancy. Besides being unreasonable on its face and violative of academic freedom,
the measure was found to be more sweeping than what was necessary, viz:
Needless to say, the enforcement of Resolution No. 105 is not a guarantee that the alleged
leakages in the licensure examinations will be eradicated or at least minimized. Making the
examinees suffer by depriving them of legitimate means of review or preparation on those
last three precious days when they should be refreshing themselves with all that they have
learned in the review classes and preparing their mental and psychological make-up for the
examination day itself — would be like uprooting the tree to get rid of a rotten branch.
What is needed to be done by the respondent is to find out the source of such
leakages and stop it right there. If corrupt officials or personnel should be terminated from
their loss, then so be it. Fixers or swindlers should be flushed out. Strict guidelines to be
observed by examiners should be set up and if violations are committed, then licenses
should be suspended or revoked. x x x (Emphasis and underscoring supplied) 28
As in De la Cruz29 and Lupangco,30 the ordinances assailed herein are characterized by
overbreadth. They go beyond what is reasonably necessary to solve the traffic problem.
Additionally, since the compulsory use of the terminal operated by petitioner would subject
the users thereof to fees, rentals and charges, such measure is unduly oppressive, as
correctly found by the appellate court. 31 What should have been done was to determine
exactly where the problem lies and then to stop it right there.
The true role of Constitutional Law is to effect an equilibrium between authority and
liberty so that rights are exercised within the framework of the law and the laws are enacted
with due deference to rights. (Underscoring supplied) 32
A due deference to the rights of the individual thus requires a more careful formulation of
solutions to societal problems.
From the memorandum33 filed before this Court by petitioner, it is gathered that the
Sangguniang Panlungsod had identified the cause of traffic congestion to be the
indiscriminate loading and unloading of passengers by buses on the streets of the city
proper, hence, the conclusion that the terminals contributed to the proliferation of buses
obstructing traffic on the city streets.
Bus terminals per se do not, however, impede or help impede the flow of traffic. How the
outright proscription against the existence of all terminals, apart from that franchised to
petitioner, can be considered as reasonably necessary to solve the traffic problem, this
Court has not been enlightened. If terminals lack adequate space such that bus drivers are
compelled to load and unload passengers on the streets instead of inside the terminals,
then reasonable specifications for the size of terminals could be instituted, with permits to
operate the same denied those which are unable to meet the specifications.
In the subject ordinances, however, the scope of the proscription against the maintenance
of terminals is so broad that even entities which might be able to provide facilities better
than the franchised terminal are barred from operating at all.
Petitioner argues, however, that other solutions for the traffic problem have already been
tried but proven ineffective. But the grant of an exclusive franchise to petitioner has not
been shown to be the only solution to the problem.
While the Sangguniang Panlungsod, via Ordinance No. 1557, 34 previously directed bus
owners and operators to put up their terminals "outside the poblacion of Lucena City,"
petitioner informs that said ordinance only resulted in the relocation of terminals to
other well-populated barangays, thereby giving rise to traffic congestion in those
areas.35 Assuming that information to be true, the Sangguniang Panlungsod was not without
remedy. It could have defined, among other considerations, in a more precise manner, the
area of relocation to avoid such consequences.
As for petitioner’s argument that the challenged ordinances were enacted pursuant to the
power of the Sangguniang Panlungsod to "[r]egulate traffic on all streets and
bridges; prohibit encroachments or obstacles thereon and, when necessary in the interest of
public welfare, authorize the removal of encroachments and illegal constructions in public
places":36 Absent any showing, nay allegation, that the terminals are encroaching upon
public roads, they are not obstacles. The buses which indiscriminately load and unload
passengers on the city streets are. The power then of the Sangguniang Panlungsod to
prohibit encroachments and obstacles does not extend to terminals.1a\^/phi1.net
Josef Elvin Campos
Neither are terminals public nuisances as petitioner argues. For their operation is a
legitimate business which, by itself, cannot be said to be injurious to the rights of property,
health, or comfort of the community.
But even assuming that terminals are nuisances due to their alleged indirect effects upon
the flow of traffic, at most they are nuisance per accidens, not per se.
Unless a thing is nuisance per se, however, it may not be abated via an ordinance, without
judicial proceedings, as was done in the case at bar.
In Estate of Gregoria Francisco v. Court of Appeals,37 this Court held:
Respondents can not seek cover under the general welfare clause authorizing the
abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per
se, or one which affects the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity (Monteverde v. Generoso, 52 Phil.
123 [1982]). The storage of copra in the quonset building is a legitimate business. By its
nature, it can not be said to be injurious to rights of property, of health or of comfort of the
community. If it be a nuisance per accidens it may be so proven in a hearing conducted for
that purpose. It is not per se a nuisance warranting its summary abatement without judicial
intervention.l^vvphi1.net (Underscoring supplied)38 1awphi1.nét
In Pampanga Bus Co., Inc. v. Municipality of Tarlac 39 where the appellant-municipality
similarly argued that the terminal involved therein is a nuisance that may be abated by the
Municipal Council via an ordinance, this Court held: "Suffice it to say that in the abatement
of nuisances the provisions of the Civil Code (Articles 694-707) must be observed and
followed. This appellant failed to do."
As for petitioner’s claim that the challenged ordinances have actually been proven effective
in easing traffic congestion: Whether an ordinance is effective is an issue different from
whether it is reasonably necessary. It is its reasonableness, not its effectiveness, which
bears upon its constitutionality. If the constitutionality of a law were measured by its
effectiveness, then even tyrannical laws may be justified whenever they happen to be
effective.
The Court is not unaware of the resolutions of various barangays in Lucena City supporting
the establishment of a common terminal, and similar expressions of support from the private
sector, copies of which were submitted to this Court by petitioner. The weight of popular
opinion, however, must be balanced with that of an individual’s rights.
There is no question that not even the strongest moral conviction or the most urgent public
need, subject only to a few notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III
of the Constitution is a majority of one even as against the rest of the nation who would
deny him that right.40
WHEREFORE, the petition is hereby DENIED.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia,
JJ., concur.
6. Legislative Power
(a) Requisites for valid ordinance
Cases:
City of Manila v. Laguio, Jr. (G.R. No. 118127, 12 April 2005)
G.R. No. 118127 April 12, 2005
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON.
JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of the City of Manila and
Presiding Officer of the City Council of Manila, HON. ERNESTO A. NIEVA, HON.
GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO,
HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G.
VARONA, JR., HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE, JR., HON.
HUMBERTO B. BASCO, HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G.
RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO
C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON.
VICTORIANO A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P.
NIETO, HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ
E. HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO
Q. BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON. MA.
CORAZON R. CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE,
JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO
Josef Elvin Campos
F. RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their
capacity as councilors of the City of Manila, Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE
TOURIST DEVELOPMENT CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral is
what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by oneself, is
less immoral than if performed by someone else, who would be well-intentioned in
his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary to its fealty to the
fundamental law of the land. It is foremost a guardian of the Constitution but not the
conscience of individuals. And if it need be, the Court will not hesitate to "make the hammer
fall, and heavily" in the words of Justice Laurel, and uphold the constitutional guarantees
when faced with laws that, though not lacking in zeal to promote morality, nevertheless fail
to pass the test of constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules on Civil
Procedure seeking the reversal of the Decision2 in Civil Case No. 93-66511 of the Regional
Trial Court (RTC) of Manila, Branch 18 (lower court), 3 is the validity of Ordinance No. 7783
(the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a corporation
engaged in the business of operating hotels, motels, hostels and lodging houses. 5 It built
and opened Victoria Court in Malate which was licensed as a motel although duly
accredited with the Department of Tourism as a hotel. 6 On 28 June 1993, MTDC filed
a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or
Temporary Restraining Order7 (RTC Petition) with the lower court impleading as defendants,
herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and
the members of the City Council of Manila (City Council). MTDC prayed that the Ordinance,
insofar as it includes motels and inns as among its prohibited establishments, be declared
invalid and unconstitutional.8
Enacted by the City Council 9 on 9 March 1993 and approved by petitioner City Mayor on 30
March 1993, the said Ordinance is entitled–
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT,
ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA,
PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER
PURPOSES.10
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary
notwithstanding, no person, partnership, corporation or entity shall, in the
Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft
Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West,
pursuant to P.D. 499 be allowed or authorized to contract and engage in, any
business providing certain forms of amusement, entertainment, services and
facilities where women are used as tools in entertainment and which tend to
disturb the community, annoy the inhabitants, and adversely affect the social
and moral welfare of the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
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10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the
said officials are prohibited from issuing permits, temporary or otherwise, or
from granting licenses and accepting payments for the operation of business
enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are hereby given three (3) months
from the date of approval of this ordinance within which to wind up business
operations or to transfer to any place outside of the Ermita-Malate area or
convert said businesses to other kinds of business allowable within the
area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for
wholesome family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of
cultural shows, stage and theatrical plays, art exhibitions, concerts and the
like.
11. Businesses allowable within the law and medium intensity districts as
provided for in the zoning ordinances for Metropolitan Manila, except new
warehouse or open-storage depot, dock or yard, motor repair shop, gasoline
service station, light industry with any machinery, or funeral establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall upon
conviction, be punished by imprisonment of one (1) year or fine of FIVE
THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the President, the General Manager, or
person-in-charge of operation shall be liable thereof; PROVIDED FURTHER, that in
case of subsequent violation and conviction, the premises of the erring
establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included
in its enumeration of prohibited establishments, motels and inns such as MTDC's Victoria
Court considering that these were not establishments for "amusement" or "entertainment"
and they were not "services or facilities for entertainment," nor did they use women as "tools
for entertainment," and neither did they "disturb the community," "annoy the inhabitants" or
"adversely affect the social and moral welfare of the community." 11
MTDC further advanced that the Ordinance was invalid and unconstitutional for the
following reasons: (1) The City Council has no power to prohibit the operation of motels as
Section 458 (a) 4 (iv)12 of the Local Government Code of 1991 (the Code) grants to the City
Council only the power to regulate the establishment, operation and maintenance of hotels,
motels, inns, pension houses, lodging houses and other similar establishments; (2) The
Ordinance is void as it is violative of Presidential Decree (P.D.) No. 499 13 which specifically
declared portions of the Ermita-Malate area as a commercial zone with certain restrictions;
(3) The Ordinance does not constitute a proper exercise of police power as the compulsory
closure of the motel business has no reasonable relation to the legitimate municipal
interests sought to be protected; (4) The Ordinance constitutes an ex post facto law by
punishing the operation of Victoria Court which was a legitimate business prior to its
enactment; (5) The Ordinance violates MTDC's constitutional rights in that: (a) it is
confiscatory and constitutes an invasion of plaintiff's property rights; (b) the City Council has
no power to find as a fact that a particular thing is a nuisance per se nor does it have the
power to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of equal
protection under the law as no reasonable basis exists for prohibiting the operation of
motels and inns, but not pension houses, hotels, lodging houses or other similar
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establishments, and for prohibiting said business in the Ermita-Malate area but not outside
of this area.14
In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained that the
City Council had the power to "prohibit certain forms of entertainment in order to protect the
social and moral welfare of the community" as provided for in Section 458 (a) 4 (vii) of the
Local Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or, prohibit
certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation
spoken of in the above-quoted provision included the power to control, to govern and to
restrain places of exhibition and amusement. 18
Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila
to protect the social and moral welfare of the community in conjunction with its police power
as found in Article III, Section 18(kk) of Republic Act No. 409, 19 otherwise known as the
Revised Charter of the City of Manila (Revised Charter of Manila) 20 which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. – The Municipal Board shall have the following
legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and
safety, the furtherance of the prosperity, and the promotion of the morality, peace,
good order, comfort, convenience, and general welfare of the city and its inhabitants,
and such others as may be necessary to carry into effect and discharge the powers
and duties conferred by this chapter; and to fix penalties for the violation of
ordinances which shall not exceed two hundred pesos fine or six months'
imprisonment, or both such fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private
respondent had the burden to prove its illegality or unconstitutionality. 21
Petitioners also maintained that there was no inconsistency between P.D. 499 and
the Ordinance as the latter simply disauthorized certain forms of businesses and allowed
the Ermita-Malate area to remain a commercial zone. 22 The Ordinance, the petitioners
likewise claimed, cannot be assailed as ex post facto as it was prospective in
operation.23 The Ordinance also did not infringe the equal protection clause and cannot be
denounced as class legislation as there existed substantial and real differences between
the Ermita-Malate area and other places in the City of Manila. 24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-
parte temporary restraining order against the enforcement of the Ordinance.25 And on 16
July 1993, again in an intrepid gesture, he granted the writ of preliminary injunction prayed
for by MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining
the petitioners from implementing the Ordinance. The dispositive portion of
said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series
of 1993, of the City of Manila null and void, and making permanent the writ of
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preliminary injunction that had been issued by this Court against the defendant. No
costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994, manifesting
that they are elevating the case to this Court under then Rule 42 on pure questions of law. 30
On 11 January 1995, petitioners filed the present Petition, alleging that the following errors
were committed by the lower court in its ruling: (1) It erred in concluding that the subject
ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of
police power; (2) It erred in holding that the questioned Ordinance contravenes P.D.
49931 which allows operators of all kinds of commercial establishments, except those
specified therein; and (3) It erred in declaring the Ordinance void and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions they
made before the lower court. They contend that the assailed Ordinance was enacted in the
exercise of the inherent and plenary power of the State and the general welfare clause
exercised by local government units provided for in Art. 3, Sec. 18 (kk) of the Revised
Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code. 34 They allege that
the Ordinance is a valid exercise of police power; it does not contravene P.D. 499; and that
it enjoys the presumption of validity.35
In its Memorandum36 dated 27 May 1996, private respondent maintains that
the Ordinance is ultra vires and that it is void for being repugnant to the general law. It
reiterates that the questioned Ordinance is not a valid exercise of police power; that it is
violative of due process, confiscatory and amounts to an arbitrary interference with its lawful
business; that it is violative of the equal protection clause; and that it confers on petitioner
City Mayor or any officer unregulated discretion in the execution of the Ordinance absent
rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment and tenderness for the
Ermita-Malate area being its home for several decades. A long-time resident, the Court
witnessed the area's many turn of events. It relished its glory days and endured its days of
infamy. Much as the Court harks back to the resplendent era of the Old Manila and yearns
to restore its lost grandeur, it believes that the Ordinance is not the fitting means to that
end. The Court is of the opinion, and so holds, that the lower court did not err in declaring
the Ordinance, as it did, ultra vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence thereof
violates a constitutional provision. The prohibitions and sanctions therein transgress the
cardinal rights of persons enshrined by the Constitution. The Court is called upon to shelter
these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held that for
an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and must be passed according to the procedure prescribed by
law, it must also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must
not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not be unreasonable. 37
Anent the first criterion, ordinances shall only be valid when they are not contrary to the
Constitution and to the laws. 38 The Ordinance must satisfy two requirements: it must pass
muster under the test of constitutionality and the test of consistency with the prevailing laws.
That ordinances should be constitutional uphold the principle of the supremacy of the
Constitution. The requirement that the enactment must not violate existing law gives stress
to the precept that local government units are able to legislate only by virtue of their
derivative legislative power, a delegation of legislative power from the national legislature.
The delegate cannot be superior to the principal or exercise powers higher than those of the
latter.39
This relationship between the national legislature and the local government units has not
been enfeebled by the new provisions in the Constitution strengthening the policy of local
autonomy. The national legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it. 40
The Ordinance was passed by the City Council in the exercise of its police power, an
enactment of the City Council acting as agent of Congress. Local government units, as
agencies of the State, are endowed with police power in order to effectively accomplish and
carry out the declared objects of their creation. 41 This delegated police power is found in
Section 16 of the Code, known as the general welfare clause, viz:
SECTION 16. General Welfare.Every local government unit shall exercise the
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preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective legislative bodies; in
this case, the sangguniang panlungsod or the city council. The Code empowers the
legislative bodies to "enact ordinances, approve resolutions and appropriate funds for the
general welfare of the province/city/municipality and its inhabitants pursuant to Section 16 of
the Code and in the proper exercise of the corporate powers of the province/city/
municipality provided under the Code. 42 The inquiry in this Petition is concerned with the
validity of the exercise of such delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is subordinate to the
constitutional limitations thereon; and is subject to the limitation that its exercise must be
reasonable and for the public good.43 In the case at bar, the enactment of
the Ordinance was an invalid exercise of delegated power as it is unconstitutional and
repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy. 44
SEC. 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men. 45
SEC. 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 laws. 46
Sec. 9. Private property shall not be taken for public use without just compensation. 47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be
deprived of life, liberty or property without due process of law. . . ." 48
There is no controlling and precise definition of due process. It furnishes though a standard
to which governmental action should conform in order that deprivation of life, liberty or
property, in each appropriate case, be valid. This standard is aptly described as a
responsiveness to the supremacy of reason, obedience to the dictates of justice, 49 and as
such it is a limitation upon the exercise of the police power. 50
The purpose of the guaranty is to prevent governmental encroachment against the life,
liberty and property of individuals; to secure the individual from the arbitrary exercise of the
powers of the government, unrestrained by the established principles of private rights and
distributive justice; to protect property from confiscation by legislative enactments, from
seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of
judicial procedure; and to secure to all persons equal and impartial justice and the benefit of
the general law.51
The guaranty serves as a protection against arbitrary regulation, and private corporations
and partnerships are "persons" within the scope of the guaranty insofar as their property is
concerned.52
This clause has been interpreted as imposing two separate limits on government, usually
called "procedural due process" and "substantive due process."
Procedural due process, as the phrase implies, refers to the procedures that the
government must follow before it deprives a person of life, liberty, or property. Classic
procedural due process issues are concerned with what kind of notice and what form of
hearing the government must provide when it takes a particular action. 53
Substantive due process, as that phrase connotes, asks whether the government has an
adequate reason for taking away a person's life, liberty, or property. In other words,
substantive due process looks to whether there is a sufficient justification for the
government's action.54 Case law in the United States (U.S.) tells us that whether there is
such a justification depends very much on the level of scrutiny used. 55 For example, if a law
is in an area where only rational basis review is applied, substantive due process is met so
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long as the law is rationally related to a legitimate government purpose. But if it is an area
where strict scrutiny is used, such as for protecting fundamental rights, then the government
will meet substantive due process only if it can prove that the law is necessary to achieve a
compelling government purpose.56
The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law. Such
power cannot be exercised whimsically, arbitrarily or despotically 57 as its exercise is subject
to a qualification, limitation or restriction demanded by the respect and regard due to the
prescription of the fundamental law, particularly those forming part of the Bill of Rights.
Individual rights, it bears emphasis, may be adversely affected only to the extent that may
fairly be required by the legitimate demands of public interest or public welfare. 58 Due
process requires the intrinsic validity of the law in interfering with the rights of the person to
his life, liberty and property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of
the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it
appear that the interests of the public generally, as distinguished from those of a particular
class, require an interference with private rights, but the means adopted must be
reasonably necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals.60 It must be evident that no other alternative for the accomplishment of the
purpose less intrusive of private rights can work. A reasonable relation must exist between
the purposes of the police measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal rights and those pertaining
to private property will not be permitted to be arbitrarily invaded. 61
Lacking a concurrence of these two requisites, the police measure shall be struck down as
an arbitrary intrusion into private rights 62 a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned by
the establishments in the Ermita-Malate area which are allegedly operated under the
deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie
houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court in the
case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila63 had already taken judicial notice of the "alarming increase in the rate of prostitution,
adultery and fornication in Manila traceable in great part to existence of motels, which
provide a necessary atmosphere for clandestine entry, presence and exit and thus become
the ideal haven for prostitutes and thrill-seekers." 64
The object of the Ordinance was, accordingly, the promotion and protection of the social
and moral values of the community. Granting for the sake of argument that the objectives of
the Ordinance are within the scope of the City Council's police powers, the means
employed for the accomplishment thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable
regulations looking to the promotion of the moral and social values of the community.
However, the worthy aim of fostering public morals and the eradication of the community's
social ills can be achieved through means less restrictive of private rights; it can be attained
by reasonable restrictions rather than by an absolute prohibition. The closing down and
transfer of businesses or their conversion into businesses "allowed" under
the Ordinance have no reasonable relation to the accomplishment of its purposes.
Otherwise stated, the prohibition of the enumerated establishments will not per se protect
and promote the social and moral welfare of the community; it will not in itself eradicate the
alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual
disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and
establishments of the like which the City Council may lawfully prohibit, 65 it is baseless and
insupportable to bring within that classification sauna parlors, massage parlors, karaoke
bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and
inns. This is not warranted under the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive to the moral welfare of the
community.
That these are used as arenas to consummate illicit sexual affairs and as venues to further
the illegal prostitution is of no moment. We lay stress on the acrid truth that sexual
immorality, being a human frailty, may take place in the most innocent of places that it may
even take place in the substitute establishments enumerated under Section 3 of
the Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote
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instance that an immoral sexual act transpires in a church cloister or a court chamber, we
would behold the spectacle of the City of Manila ordering the closure of the church or court
concerned. Every house, building, park, curb, street or even vehicles for that matter will not
be exempt from the prohibition. Simply because there are no "pure" places where there are
impure men. Indeed, even the Scripture and the Tradition of Christians churches continually
recall the presence and universality of sin in man's history.66
The problem, it needs to be pointed out, is not the establishment, which by its nature cannot
be said to be injurious to the health or comfort of the community and which in itself is
amoral, but the deplorable human activity that may occur within its premises. While a motel
may be used as a venue for immoral sexual activity, it cannot for that reason alone be
punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a mere
likelihood or a naked assumption. If that were so and if that were allowed, then the Ermita-
Malate area would not only be purged of its supposed social ills, it would be extinguished of
its soul as well as every human activity, reprehensible or not, in its every nook and cranny
would be laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of morality.
Try as the Ordinance may to shape morality, it should not foster the illusion that it can make
a moral man out of it because immorality is not a thing, a building or establishment; it is in
the hearts of men. The City Council instead should regulate human conduct that occurs
inside the establishments, but not to the detriment of liberty and privacy which are
covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is commendable,
they unwittingly punish even the proprietors and operators of "wholesome," "innocent"
establishments. In the instant case, there is a clear invasion of personal or property rights,
personal in the case of those individuals desirous of owning, operating and patronizing
those motels and property in terms of the investments made and the salaries to be paid to
those therein employed. If the City of Manila so desires to put an end to prostitution,
fornication and other social ills, it can instead impose reasonable regulations such as daily
inspections of the establishments for any violation of the conditions of their licenses or
permits; it may exercise its authority to suspend or revoke their licenses for these
violations;67 and it may even impose increased license fees. In other words, there are other
means to reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars,
beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls,
motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of
the enumerated establishments are given three (3) months from the date of approval of
the Ordinance within which "to wind up business operations or to transfer to any place
outside the Ermita-Malate area or convert said businesses to other kinds of business
allowable within the area." Further, it states in Section 4 that in cases of subsequent
violations of the provisions of the Ordinance, the "premises of the erring establishment shall
be closed and padlocked permanently."
It is readily apparent that the means employed by the Ordinance for the achievement of its
purposes, the governmental interference itself, infringes on the constitutional guarantees of
a person's fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the
right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be
dwarfed into mere freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the facilities with which he has been endowed
by his Creator, subject only to such restraint as are necessary for the common welfare." 68 In
accordance with this case, the rights of the citizen to be free to use his faculties in all lawful
ways; to live and work where he will; to earn his livelihood by any lawful calling; and to
pursue any avocation are all deemed embraced in the concept of liberty. 69
The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify the
meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty. . . guaranteed
[by the Fifth and Fourteenth Amendments], the term denotes not merely freedom
from bodily restraint but also the right of the individual to contract, to engage in any
of the common occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized…as essential to
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the orderly pursuit of happiness by free men. In a Constitution for a free people,
there can be no doubt that the meaning of "liberty" must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause includes
personal decisions relating to marriage, procreation, contraception, family relationships,
child rearing, and education. In explaining the respect the Constitution demands for the
autonomy of the person in making these choices, the U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a person may make
in a lifetime, choices central to personal dignity and autonomy, are central to the
liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to
define one's own concept of existence, of meaning, of universe, and of the mystery
of human life. Beliefs about these matters could not define the attributes of
personhood where they formed under compulsion of the State. 71
Persons desirous to own, operate and patronize the enumerated establishments under
Section 1 of the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to
consummate their bonds in intimate sexual conduct within the motel's premisesbe it
stressed that their consensual sexual behavior does not contravene any fundamental state
policy as contained in the Constitution. 72 Adults have a right to choose to forge such
relationships with others in the confines of their own private lives and still retain their dignity
as free persons. The liberty protected by the Constitution allows persons the right to make
this choice.73 Their right to liberty under the due process clause gives them the full right to
engage in their conduct without intervention of the government, as long as they do not run
afoul of the law. Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government
restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be
let alone is the beginning of all freedomit is the most comprehensive of rights and the
right most valued by civilized men.74
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc,75 borrowing the words of
Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness,
his isolation, are indefeasible; indeed, they are so fundamental that they are the
basis on which his civic obligations are built. He cannot abandon the consequences
of his isolation, which are, broadly speaking, that his experience is private, and the
will built out of that experience personal to himself. If he surrenders his will to others,
he surrenders himself. If his will is set by the will of others, he ceases to be a master
of himself. I cannot believe that a man no longer a master of himself is in any real
sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of
which should be justified by a compelling state interest. Morfe accorded recognition to the
right to privacy independently of its identification with liberty; in itself it is fully deserving of
constitutional protection. Governmental powers should stop short of certain intrusions into
the personal life of the citizen.76
There is a great temptation to have an extended discussion on these civil liberties but the
Court chooses to exercise restraint and restrict itself to the issues presented when it should.
The previous pronouncements of the Court are not to be interpreted as a license for adults
to engage in criminal conduct. The reprehensibility of such conduct is not diminished. The
Court only reaffirms and guarantees their right to make this choice. Should they be
prosecuted for their illegal conduct, they should suffer the consequences of the choice they
have made. That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the
respondent of the beneficial use of its property. 77 The Ordinance in Section 1 thereof forbids
the running of the enumerated businesses in the Ermita-Malate area and in Section 3
instructs its owners/operators to wind up business operations or to transfer outside the area
or convert said businesses into allowed businesses. An ordinance which permanently
restricts the use of property that it can not be used for any reasonable purpose goes beyond
regulation and must be recognized as a taking of the property without just compensation. 78 It
is intrusive and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that "private property shall not
be taken for public use without just compensation." The provision is the most important
protection of property rights in the Constitution. This is a restriction on the general power of
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the government to take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others. In part too, it is
about loss spreading. If the government takes away a person's property to benefit society,
then society should pay. The principal purpose of the guarantee is "to bar the Government
from forcing some people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.79
There are two different types of taking that can be identified. A "possessory" taking occurs
when the government confiscates or physically occupies property. A "regulatory" taking
occurs when the government's regulation leaves no reasonable economically viable use of
the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also could
be found if government regulation of the use of property went "too far." When regulation
reaches a certain magnitude, in most if not in all cases there must be an exercise of
eminent domain and compensation to support the act. While property may be regulated to a
certain extent, if regulation goes too far it will be recognized as a taking. 82
No formula or rule can be devised to answer the questions of what is too far and when
regulation becomes a taking. In Mahon, Justice Holmes recognized that it was "a question
of degree and therefore cannot be disposed of by general propositions." On many other
occasions as well, the U.S. Supreme Court has said that the issue of when regulation
constitutes a taking is a matter of considering the facts in each case. The Court asks
whether justice and fairness require that the economic loss caused by public action must be
compensated by the government and thus borne by the public as a whole, or whether the
loss should remain concentrated on those few persons subject to the public action. 83
What is crucial in judicial consideration of regulatory takings is that government regulation is
a taking if it leaves no reasonable economically viable use of property in a manner that
interferes with reasonable expectations for use. 84 A regulation that permanently denies all
economically beneficial or productive use of land is, from the owner's point of view,
equivalent to a "taking" unless principles of nuisance or property law that existed when the
owner acquired the land make the use prohibitable. 85 When the owner of real property has
been called upon to sacrifice all economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has suffered a taking. 86
A regulation which denies all economically beneficial or productive use of land will require
compensation under the takings clause. Where a regulation places limitations on land that
fall short of eliminating all economically beneficial use, a taking nonetheless may have
occurred, depending on a complex of factors including the regulation's economic effect on
the landowner, the extent to which the regulation interferes with reasonable investment-
backed expectations and the character of government action. These inquiries are informed
by the purpose of the takings clause which is to prevent the government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be borne by
the public as a whole.87
A restriction on use of property may also constitute a "taking" if not reasonably necessary to
the effectuation of a substantial public purpose or if it has an unduly harsh impact on the
distinct investment-backed expectations of the owner. 88
The Ordinance gives the owners and operators of the "prohibited" establishments three (3)
months from its approval within which to "wind up business operations or to transfer to any
place outside of the Ermita-Malate area or convert said businesses to other kinds of
business allowable within the area." The directive to "wind up business operations" amounts
to a closure of the establishment, a permanent deprivation of property, and is practically
confiscatory. Unless the owner converts his establishment to accommodate an "allowed"
business, the structure which housed the previous business will be left empty and gathering
dust. Suppose he transfers it to another area, he will likewise leave the entire establishment
idle. Consideration must be given to the substantial amount of money invested to build the
edifices which the owner reasonably expects to be returned within a period of time. It is
apparent that the Ordinance leaves no reasonable economically viable use of property in a
manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area or
to convert into allowed businessesare confiscatory as well. The penalty of permanent
closure in cases of subsequent violations found in Section 4 of the Ordinance is also
equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property and build another one
outside the Ermita-Malate area. In every sense, it qualifies as a taking without just
compensation with an additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does not put an end to the
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"problem," it merely relocates it. Not only is this impractical, it is unreasonable, onerous and
oppressive. The conversion into allowed enterprises is just as ridiculous. How may the
respondent convert a motel into a restaurant or a coffee shop, art gallery or music lounge
without essentially destroying its property? This is a taking of private property without due
process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be compensated by
the government. The burden on the owner to convert or transfer his business, otherwise it
will be closed permanently after a subsequent violation should be borne by the public as
this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning
ordinance, although a valid exercise of police power, which limits a "wholesome" property to
a use which can not reasonably be made of it constitutes the taking of such property without
just compensation. Private property which is not noxious nor intended for noxious purposes
may not, by zoning, be destroyed without compensation. Such principle finds no support in
the principles of justice as we know them. The police powers of local government units
which have always received broad and liberal interpretation cannot be stretched to cover
this particular taking.
Distinction should be made between destruction from necessity and eminent domain. It
needs restating that the property taken in the exercise of police power is destroyed because
it is noxious or intended for a noxious purpose while the property taken under the power of
eminent domain is intended for a public use or purpose and is therefore "wholesome." 89 If it
be of public benefit that a "wholesome" property remain unused or relegated to a particular
purpose, then certainly the public should bear the cost of reasonable compensation for the
condemnation of private property for public use. 90
Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It
in no way controls or guides the discretion vested in them. It provides no definition of the
establishments covered by it and it fails to set forth the conditions when the establishments
come within its ambit of prohibition. The Ordinance confers upon the mayor arbitrary and
unrestricted power to close down establishments. Ordinances such as this, which make
possible abuses in its execution, depending upon no conditions or qualifications whatsoever
other than the unregulated arbitrary will of the city authorities as the touchstone by which its
validity is to be tested, are unreasonable and invalid. The Ordinance should have
established a rule by which its impartial enforcement could be secured. 91
Ordinances placing restrictions upon the lawful use of property must, in order to be valid
and constitutional, specify the rules and conditions to be observed and conduct to avoid;
and must not admit of the exercise, or of an opportunity for the exercise, of unbridled
discretion by the law enforcers in carrying out its provisions. 92
Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S. Supreme
Court struck down an ordinance that had made it illegal for "three or more persons to
assemble on any sidewalk and there conduct themselves in a manner annoying to persons
passing by." The ordinance was nullified as it imposed no standard at all "because one may
never know in advance what 'annoys some people but does not annoy others.' "
Similarly, the Ordinance does not specify the standards to ascertain which establishments
"tend to disturb the community," "annoy the inhabitants," and "adversely affect the social
and moral welfare of the community." The cited case supports the nullification of
the Ordinance for lack of comprehensible standards to guide the law enforcers in carrying
out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments without
infringing the due process clause. These lawful establishments may be regulated, but not
prevented from carrying on their business. This is a sweeping exercise of police power that
is a result of a lack of imagination on the part of the City Council and which amounts to an
interference into personal and private rights which the Court will not countenance. In this
regard, we take a resolute stand to uphold the constitutional guarantee of the right to liberty
and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far
cry from the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive ordinance
regulating "sexually oriented businesses," which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters as well as escort agencies, nude
model studio and sexual encounter centers. Among other things, the ordinance required
that such businesses be licensed. A group of motel owners were among the three groups of
businesses that filed separate suits challenging the ordinance. The motel owners asserted
that the city violated the due process clause by failing to produce adequate support for its
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supposition that renting room for fewer than ten (10) hours resulted in increased crime and
other secondary effects. They likewise argued than the ten (10)-hour limitation on the rental
of motel rooms placed an unconstitutional burden on the right to freedom of association.
Anent the first contention, the U.S. Supreme Court held that the reasonableness of the
legislative judgment combined with a study which the city considered, was adequate to
support the city's determination that motels permitting room rentals for fewer than ten (10 )
hours should be included within the licensing scheme. As regards the second point, the
Court held that limiting motel room rentals to ten (10) hours will have no discernible effect
on personal bonds as those bonds that are formed from the use of a motel room for fewer
than ten (10) hours are not those that have played a critical role in the culture and traditions
of the nation by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted
businesses. It imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila,96 it needs pointing out, is also different from this case in that what was involved
therein was a measure which regulated the mode in which motels may conduct business in
order to put an end to practices which could encourage vice and immorality. Necessarily,
there was no valid objection on due process or equal protection grounds as the ordinance
did not prohibit motels. The Ordinance in this case however is not a regulatory measure but
is an exercise of an assumed power to prohibit. 97
The foregoing premises show that the Ordinance is an unwarranted and unlawful
curtailment of property and personal rights of citizens. For being unreasonable and an
undue restraint of trade, it cannot, even under the guise of exercising police power, be
upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. Similar subjects, in other words,
should not be treated differently, so as to give undue favor to some and unjustly
discriminate against others.98 The guarantee 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.99 The "equal protection of the laws is a pledge of the protection of equal
laws."100 It limits governmental discrimination. The equal protection clause extends to
artificial persons but only insofar as their property is concerned. 101
The Court has explained the scope of the equal protection clause in this wise:
… What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Administration: "The ideal situation is for the law's benefits to be available to all, that
none be placed outside the sphere of its coverage. Only thus could chance and favor
be excluded and the affairs of men governed by that serene and impartial uniformity,
which is of the very essence of the idea of law." There is recognition, however, in the
opinion that what in fact exists "cannot approximate the ideal. Nor is the law
susceptible to the reproach that it does not take into account the realities of the
situation. The constitutional guarantee then is not to be given a meaning that
disregards what is, what does in fact exist. To assure that the general welfare be
promoted, which is the end of law, a regulatory measure may cut into the rights to
liberty and property. Those adversely affected may under such 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."
Classification is thus not ruled out, it being sufficient to quote from the Tuason
decision anew "that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities
imposed. Favoritism and undue preference cannot be allowed. For the principle is
that equal protection and security shall be given to every person under
circumstances which, if not identical, are analogous. If law be looked upon in terms
of burden or charges, those that fall within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the
rest.102
Legislative bodies are allowed to classify the subjects of legislation. If the classification is
reasonable, the law may operate only on some and not all of the people without violating
the equal protection clause.103 The classification must, as an indispensable requisite, not be
arbitrary. To be valid, it must conform to the following requirements:
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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.
4) It must apply equally to all members of the class. 104
In the Court's view, there are no substantial distinctions between motels, inns, pension
houses, hotels, lodging houses or other similar establishments. By definition, all are
commercial establishments providing lodging and usually meals and other services for the
public. No reason exists for prohibiting motels and inns but not pension houses, hotels,
lodging houses or other similar establishments. The classification in the instant case is
invalid as similar subjects are not similarly treated, both as to rights conferred and
obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a
just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels
in the Ermita-Malate area but not outside of this area. A noxious establishment does not
become any less noxious if located outside the area.
The standard "where women are used as tools for entertainment" is also discriminatory as
prostitutionone of the hinted ills the Ordinance aims to banishis not a profession
exclusive to women. Both men and women have an equal propensity to engage in
prostitution. It is not any less grave a sin when men engage in it. And why would the
assumption that there is an ongoing immoral activity apply only when women are employed
and be inapposite when men are in harness? This discrimination based on gender violates
equal protection as it is not substantially related to important government
objectives.105 Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of
consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local
government units to regulate, and not prohibit, the establishments enumerated in Section 1
thereof.
The power of the City Council to regulate by ordinances the establishment, operation, and
maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4
(iv), which provides that:
. . .
. . .
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants,
beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments, including tourist guides and transports . . . .
While its power to regulate the establishment, operation and maintenance of any
entertainment or amusement facilities, and to prohibit certain forms of amusement or
entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as follows:
. . .
. . .
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
Josef Elvin Campos
inhabitants, or require the suspension or suppression of the same; or, prohibit
certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments, the only power of the City
Council to legislate relative thereto is to regulate them to promote the general welfare. The
Code still withholds from cities the power to suppress and prohibit altogether the
establishment, operation and maintenance of such establishments. It is well to recall the
rulings of the Court in Kwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444 of the Administrative
Code, means and includes the power to control, to govern, and to restrain; but
"regulate" should not be construed as synonymous with "suppress" or "prohibit."
Consequently, under the power to regulate laundries, the municipal authorities could
make proper police regulations as to the mode in which the employment or business
shall be exercised.107
And in People v. Esguerra,108 wherein the Court nullified an ordinance of the Municipality of
Tacloban which prohibited the selling, giving and dispensing of liquor ratiocinating that the
municipality is empowered only to regulate the same and not prohibit. The Court therein
declared that:
(A)s a general rule when a municipal corporation is specifically given authority or
power to regulate or to license and regulate the liquor traffic, power to prohibit is
impliedly withheld.109
These doctrines still hold contrary to petitioners' assertion 110 that they were modified by the
Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment or
amusement as found in the first clause of Section 458 (a) 4 (vii). Its powers to regulate,
suppress and suspend "such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants" and to
"prohibit certain forms of amusement or entertainment in order to protect the social and
moral welfare of the community" are stated in the second and third clauses, respectively of
the same Section. The several powers of the City Council as provided in Section 458 (a) 4
(vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of
which indicates that the clauses in which these powers are set forth are independent of
each other albeit closely related to justify being put together in a single enumeration or
paragraph.111 These powers, therefore, should not be confused, commingled or consolidated
as to create a conglomerated and unified power of regulation, suppression and
prohibition.112
The Congress unequivocably specified the establishments and forms of amusement or
entertainment subject to regulation among which are beerhouses, hotels, motels, inns,
pension houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)),
public dancing schools, public dance halls, sauna baths, massage parlors, and other places
for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot
be included as among "other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants" or "certain
forms of amusement or entertainment" which the City Council may suspend, suppress or
prohibit.
The rule is that the City Council has only such powers as are expressly granted to it and
those which are necessarily implied or incidental to the exercise thereof. By reason of its
limited powers and the nature thereof, said powers are to be construed strictissimi juris and
any doubt or ambiguity arising out of the terms used in granting said powers must be
construed against the City Council. 113 Moreover, it is a general rule in statutory construction
that the express mention of one person, thing, or consequence is tantamount to an express
exclusion of all others. Expressio unius est exclusio alterium. This maxim is based upon the
rules of logic and the natural workings of human mind. It is particularly applicable in the
construction of such statutes as create new rights or remedies, impose penalties or
punishments, or otherwise come under the rule of strict construction. 114
The argument that the City Council is empowered to enact the Ordinance by virtue of the
general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of
Manila is likewise without merit. On the first point, the ruling of the Court in People v.
Esguerra,115 is instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or
section 2238 of the Revised Administrative Code, refers to matters not covered by
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the other provisions of the same Code, and therefore it can not be applied to
intoxicating liquors, for the power to regulate the selling, giving away and dispensing
thereof is granted specifically by section 2242 (g) to municipal councils. To hold that,
under the general power granted by section 2238, a municipal council may enact
the ordinance in question, notwithstanding the provision of section 2242 (g), would
be to make the latter superfluous and nugatory, because the power to prohibit,
includes the power to regulate, the selling, giving away and dispensing of intoxicating
liquors.
On the second point, it suffices to say that the Code being a later expression of the
legislative will must necessarily prevail and override the earlier law, the Revised Charter of
Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior ones
which are repugnant thereto. As between two laws on the same subject matter, which are
irreconcilably inconsistent, that which is passed later prevails, since it is the latest
expression of legislative will. 116 If there is an inconsistency or repugnance between two
statutes, both relating to the same subject matter, which cannot be removed by any fair and
reasonable method of interpretation, it is the latest expression of the legislative will which
must prevail and override the earlier.117
Implied repeals are those which take place when a subsequently enacted law contains
provisions contrary to those of an existing law but no provisions expressly repealing them.
Such repeals have been divided into two general classes: those which occur where an act
is so inconsistent or irreconcilable with an existing prior act that only one of the two can
remain in force and those which occur when an act covers the whole subject of an earlier
act and is intended to be a substitute therefor. The validity of such a repeal is sustained on
the ground that the latest expression of the legislative will should prevail. 118
In addition, Section 534(f) of the Code states that "All general and special laws, acts, city
charters, decrees, executive orders, proclamations and administrative regulations, or part or
parts thereof which are inconsistent with any of the provisions of this Code are hereby
repealed or modified accordingly." Thus, submitting to petitioners' interpretation that the
Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the
Charter stating such must be considered repealed by the Code as it is at variance with the
latter's provisions granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general welfare
clause authorizing the abatement of nuisances without judicial proceedings. That tenet
applies to a nuisance per se, or one which affects the immediate safety of persons and
property and may be summarily abated under the undefined law of necessity. It can not be
said that motels are injurious to the rights of property, health or comfort of the community. It
is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing
conducted for that purpose. A motel is not per se a nuisance warranting its summary
abatement without judicial intervention.119
Notably, the City Council was conferred powers to prevent and prohibit certain activities and
establishments in another section of the Code which is reproduced as follows:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective
city government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate
penalties for habitual drunkenness in public places, vagrancy, mendicancy,
prostitution, establishment and maintenance of houses of ill repute, gambling and
other prohibited games of chance, fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of obscene or pornographic
materials or publications, and such other activities inimical to the welfare and morals
of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the power to prohibit the
establishments enumerated in Section 1 of the Ordinance, it would have so declared in
uncertain terms by adding them to the list of the matters it may prohibit under the above-
quoted Section. The Ordinance now vainly attempts to lump these establishments with
houses of ill-repute and expand the City Council's powers in the second and third clauses of
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Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is
evident that these establishments may only be regulated in their establishment, operation
and maintenance.
It is important to distinguish the punishable activities from the establishments themselves.
That these establishments are recognized legitimate enterprises can be gleaned from
another Section of the Code. Section 131 under the Title on Local Government Taxation
expressly mentioned proprietors or operators of massage clinics, sauna, Turkish and
Swedish baths, hotels, motels and lodging houses as among the "contractors" defined in
paragraph (h) thereof. The same Section also defined "amusement" as a "pleasurable
diversion and entertainment," "synonymous to relaxation, avocation, pastime or fun;" and
"amusement places" to include "theaters, cinemas, concert halls, circuses and other places
of amusement where one seeks admission to entertain oneself by seeing or viewing the
show or performances." Thus, it can be inferred that the Code considers these
establishments as legitimate enterprises and activities. It is well to recall the maxim
reddendo singula singulis which means that words in different parts of a statute must be
referred to their appropriate connection, giving to each in its place, its proper force and
effect, and, if possible, rendering none of them useless or superfluous, even if strict
grammatical construction demands otherwise. Likewise, where words under consideration
appear in different sections or are widely dispersed throughout an act the same principle
applies.120
Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions
of P.D. 499. As correctly argued by MTDC, the statute had already converted the residential
Ermita-Malate area into a commercial area. The decree allowed the establishment and
operation of all kinds of commercial establishments except warehouse or open storage
depot, dump or yard, motor repair shop, gasoline service station, light industry with any
machinery or funeral establishment. The rule is that for an ordinance to be valid and to have
force and effect, it must not only be within the powers of the council to enact but the same
must not be in conflict with or repugnant to the general law. 121 As succinctly illustrated
in Solicitor General v. Metropolitan Manila Authority:122
The requirement that the enactment must not violate existing law explains itself.
Local political subdivisions are able to legislate only by virtue of a valid delegation of
legislative power from the national legislature (except only that the power to create
their own sources of revenue and to levy taxes is conferred by the Constitution
itself). They are mere agents vested with what is called the power of subordinate
legislation. As delegates of the Congress, the local government units cannot
contravene but must obey at all times the will of their principal. In the case before us,
the enactment in question, which are merely local in origin cannot prevail against the
decree, which has the force and effect of a statute. 123
Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be
the rule, it has already been held that although the presumption is always in favor of the
validity or reasonableness of the ordinance, such presumption must nevertheless be set
aside when the invalidity or unreasonableness appears on the face of the ordinance itself or
is established by proper evidence. The exercise of police power by the local government is
valid unless it contravenes the fundamental law of the land, or an act of the legislature, or
unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in
derogation of a common right.124
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and
impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes;
it is discriminatory and unreasonable in its operation; it is not sufficiently detailed and
explicit that abuses may attend the enforcement of its sanctions. And not to be forgotten,
the City Council under the Code had no power to enact the Ordinance and is therefore ultra
vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and shares
the concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police
power legislation of such character deserves the full endorsement of the judiciary we
reiterate our support for it. But inspite of its virtuous aims, the enactment of
the Ordinance has no statutory or constitutional authority to stand on. Local legislative
bodies, in this case, the City Council, cannot prohibit the operation of the enumerated
establishments under Section 1 thereof or order their transfer or conversion without
infringing the constitutional guarantees of due process and equal protection of laws not
even under the guise of police power.
Josef Elvin Campos
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court
declaring the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur
Panganiban, J., in the result.
Ynares- Santiago, J., concur in the result only.
Social Justice Society v. Atienza (G.R. No. 156052, 13 Feb. 2008)

G.R. No. 156052 February 13, 2008
SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO and
BONIFACIO S. TUMBOKON, petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of
Manila, respondent.
x----------------------x
CHEVRON PHILIPPINES INC., PETRON CORPORATION and PILIPINAS SHELL
PETROLEUM CORPORATION, movants-intervenors.
x----------------------x
DEPARTMENT OF ENERGY, movant-intervenor.
RESOLUTION
CORONA, J.:
After we promulgated our decision in this case on March 7, 2007, Chevron Philippines Inc.
(Chevron), Petron Corporation (Petron) and Pilipinas Shell Petroleum Corporation (Shell)
(collectively, the oil companies) and the Republic of the Philippines, represented by the
Department of Energy (DOE), filed their respective motions for leave to intervene and for
reconsideration of the decision.
Chevron1 is engaged in the business of importing, distributing and marketing of petroleum
products in the Philippines while Shell and Petron are engaged in the business of
manufacturing, refining and likewise importing, distributing and marketing of petroleum
products in the Philippines.2 The DOE is a governmental agency created under Republic
Act (RA) No. 76383 and tasked to prepare, integrate, coordinate, supervise and control all
plans, programs, projects and activities of the government relative to energy exploration,
development, utilization, distribution and conservation. 4
The facts are restated briefly as follows:
Petitioners Social Justice Society, Vladimir Alarique T. Cabigao and Bonifacio S.
Tumbokon, in an original petition for mandamus under Rule 65 of the Rules of Court, sought
to compel respondent Hon. Jose L. Atienza, Jr., then mayor of the City of Manila, to enforce
Ordinance No. 8027. This ordinance was enacted by the Sangguniang Panlungsod of
Manila on November 20, 2001, 5 approved by respondent Mayor on November 28,
2001,6 and became effective on December 28, 2001 after publication. 7 Sections 1 and 3
thereof state:
SECTION 1. For the purpose of promoting sound urban planning and ensuring
health, public safety, and general welfare of the residents of Pandacan and Sta. Ana
as well as its adjoining areas, the land use of [those] portions of land bounded by the
Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south,
Palumpong St. in the southwest, and Estero de Pandacan in the west[,] PNR
Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in
the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana
bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo
Street, are hereby reclassified from Industrial II to Commercial I.
xxx xxx xxx
SEC. 3. Owners or operators of industries and other businesses, the operation of
which are no longer permitted under Section 1 hereof, are hereby given a period of
six (6) months from the date of effectivity of this Ordinance within which to cease and
desist from the operation of businesses which are hereby in consequence,
disallowed.
Ordinance No. 8027 reclassified the area described therein from industrial to commercial
and directed the owners and operators of businesses disallowed under the reclassification
to cease and desist from operating their businesses within six months from the date of
effectivity of the ordinance. Among the businesses situated in the area are the so-called
"Pandacan Terminals" of the oil companies.
Josef Elvin Campos
On June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a
memorandum of understanding (MOU)8 with the oil companies. They agreed that "the
scaling down of the Pandacan Terminals [was] the most viable and practicable option."
The Sangguniang Panlungsod ratified the MOU in Resolution No. 97.9 In the same
resolution, the Sanggunian declared that the MOU was effective only for a period of six
months starting July 25, 2002.10 Thereafter, on January 30, 2003, the Sanggunian adopted
Resolution No. 1311 extending the validity of Resolution No. 97 to April 30, 2003 and
authorizing the mayor of Manila to issue special business permits to the oil companies. 12
This was the factual backdrop presented to the Court which became the basis of our March
7, 2007 decision. We ruled that respondent had the ministerial duty under the Local
Government Code (LGC) to "enforce all laws and ordinances relative to the governance of
the city,"13 including Ordinance No. 8027. We also held that we need not resolve the issue
of whether the MOU entered into by respondent with the oil companies and the subsequent
resolutions passed by the Sanggunian could amend or repeal Ordinance No. 8027 since the
resolutions which ratified the MOU and made it binding on the City of Manila expressly gave
it full force and effect only until April 30, 2003. We concluded that there was nothing that
legally hindered respondent from enforcing Ordinance No. 8027.
After we rendered our decision on March 7, 2007, the oil companies and DOE sought to
intervene and filed motions for reconsideration in intervention on March 12, 2007 and March
21, 2007 respectively. On April 11, 2007, we conducted the oral arguments in Baguio City to
hear petitioners, respondent and movants-intervenors oil companies and DOE.
The oil companies called our attention to the fact that on April 25, 2003, Chevron had filed a
complaint against respondent and the City of Manila in the Regional Trial Court (RTC) of
Manila, Branch 39, for the annulment of Ordinance No. 8027 with application for writs of
preliminary prohibitory injunction and preliminary mandatory injunction. 14 The case was
docketed as civil case no. 03-106377. On the same day, Shell filed a petition for prohibition
and mandamus likewise assailing the validity of Ordinance No. 8027 and with application for
writs of preliminary prohibitory injunction and preliminary mandatory injunction. 15 This was
docketed as civil case no. 03-106380. Later on, these two cases were consolidated and the
RTC of Manila, Branch 39 issued an order dated May 19, 2003 granting the applications for
writs of preliminary prohibitory injunction and preliminary mandatory injunction:
WHEREFORE, upon the filing of a total bond of TWO MILLION (Php 2,000,000.00)
PESOS, let a Writ of Preliminary Prohibitory Injunction be issued ordering
[respondent] and the City of Manila, their officers, agents, representatives,
successors, and any other persons assisting or acting in their behalf, during the
pendency of the case, to REFRAIN from taking steps to enforce Ordinance No.
8027, and let a Writ of Preliminary Mandatory Injunction be issued ordering
[respondent] to issue [Chevron and Shell] the necessary Business Permits to
operate at the Pandacan Terminal.16
Petron likewise filed its own petition in the RTC of Manila, Branch 42, also attacking the
validity of Ordinance No. 8027 with prayer for the issuance of a writ of preliminary injunction
and/or temporary restraining order (TRO). This was docketed as civil case no. 03-106379.
In an order dated August 4, 2004, the RTC enjoined the parties to maintain the status quo. 17
Thereafter, in 2006, the city council of Manila enacted Ordinance No. 8119, also known as
the Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006. 18 This was
approved by respondent on June 16, 2006.19
Aggrieved anew, Chevron and Shell filed a complaint in the RTC of Manila, Branch 20,
asking for the nullification of Ordinance No. 8119. 20 This was docketed as civil case no. 06-
115334. Petron filed its own complaint on the same causes of action in the RTC of Manila,
Branch 41.21 This was docketed as civil case no. 07-116700. 22 The court issued a TRO in
favor of Petron, enjoining the City of Manila and respondent from enforcing Ordinance No.
8119.23
Meanwhile, in civil case no. 03-106379, the parties filed a joint motion to withdraw complaint
and counterclaim on February 20, 2007. 24 In an order dated April 23, 2007, the joint motion
was granted and all the claims and counterclaims of the parties were withdrawn. 25
Given these additional pieces of information, the following were submitted as issues for our
resolution:
1. whether movants-intervenors should be allowed to intervene in this case; 26
2. whether the following are impediments to the execution of our March 7, 2007
decision:
(a) Ordinance No. 8119, the enactment and existence of which were not
previously brought by the parties to the attention of the Court and
Josef Elvin Campos
(b) writs of preliminary prohibitory injunction and preliminary mandatory
injunction and status quo order issued by the RTC of Manila, Branches 39
and 42 and
3. whether the implementation of Ordinance No. 8027 will unduly encroach upon the
DOE’s powers and functions involving energy resources.
During the oral arguments, the parties submitted to this Court’s power to rule on the
constitutionality and validity of Ordinance No. 8027 despite the pendency of consolidated
cases involving this issue in the RTC. 27 The importance of settling this controversy as fully
and as expeditiously as possible was emphasized, considering its impact on public interest.
Thus, we will also dispose of this issue here. The parties were after all given ample
opportunity to present and argue their respective positions. By so doing, we will do away
with the delays concomitant with litigation and completely adjudicate an issue which will
most likely reach us anyway as the final arbiter of all legal disputes.
Before we resolve these issues, a brief review of the history of the Pandacan Terminals is
called for to put our discussion in the proper context.
History Of The Pandacan Oil Terminals
Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig
river. At the turn of the twentieth century, Pandacan was unofficially designated as the
industrial center of Manila. The area, then largely uninhabited, was ideal for various
emerging industries as the nearby river facilitated the transportation of goods and products.
In the 1920s, it was classified as an industrial zone. 28 Among its early industrial settlers
were the oil companies. Shell established its installation there on January 30, 1914. 29 Caltex
(now Chevron) followed suit in 1917 when the company began marketing its products in the
country.30 In 1922, it built a warehouse depot which was later converted into a key
distribution terminal.31 The corporate presence in the Philippines of Esso (Petron’s
predecessor) became more keenly felt when it won a concession to build and operate a
refinery in Bataan in 1957.32 It then went on to operate a state-of-the-art lube oil blending
plant in the Pandacan Terminals where it manufactures lubes and greases. 33
On December 8, 1941, the Second World War reached the shores of the Philippine Islands.
Although Manila was declared an open city, the Americans had no interest in welcoming the
Japanese. In fact, in their zealous attempt to fend off the Japanese Imperial Army, the
United States Army took control of the Pandacan Terminals and hastily made plans to
destroy the storage facilities to deprive the advancing Japanese Army of a valuable logistics
weapon.34 The U.S. Army burned unused petroleum, causing a frightening conflagration.
Historian Nick Joaquin recounted the events as follows:
After the USAFFE evacuated the City late in December 1941, all army fuel storage
dumps were set on fire. The flames spread, enveloping the City in smoke, setting
even the rivers ablaze, endangering bridges and all riverside buildings. … For one
week longer, the "open city" blazed—a cloud of smoke by day, a pillar of fire by
night.35
The fire consequently destroyed the Pandacan Terminals and rendered its network of
depots and service stations inoperative.36
After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself.
The three major oil companies resumed the operation of their depots. 37 But the district was
no longer a sparsely populated industrial zone; it had evolved into a bustling, hodgepodge
community. Today, Pandacan has become a densely populated area inhabited by about
84,000 people, majority of whom are urban poor who call it home. 38 Aside from numerous
industrial installations, there are also small businesses, churches, restaurants, schools,
daycare centers and residences situated there. 39 Malacañang Palace, the official residence
of the President of the Philippines and the seat of governmental power, is just two
kilometers away.40 There is a private school near the Petron depot. Along the walls of the
Shell facility are shanties of informal settlers. 41 More than 15,000 students are enrolled in
elementary and high schools situated near these facilities. 42 A university with a student
population of about 25,000 is located directly across the depot on the banks of the Pasig
river.43
The 36-hectare Pandacan Terminals house the oil companies’ distribution terminals and
depot facilities.44 The refineries of Chevron and Shell in Tabangao and Bauan, both in
Batangas, respectively, are connected to the Pandacan Terminals through a 114-
kilometer45 underground pipeline system.46 Petron’s refinery in Limay, Bataan, on the other
hand, also services the depot. 47 The terminals store fuel and other petroleum products and
supply 95% of the fuel requirements of Metro Manila, 48 50% of Luzon’s consumption and
35% nationwide.49 Fuel can also be transported through barges along the Pasig river or tank
trucks via the South Luzon Expressway.
Josef Elvin Campos
We now discuss the first issue: whether movants-intervenors should be allowed to intervene
in this case.
Intervention Of The Oil Companies And The DOE Should Be Allowed In The Interest
of Justice
Intervention is a remedy by which a third party, not originally impleaded in the proceedings,
becomes a litigant therein to enable him, her or it to protect or preserve a right or interest
which may be affected by such proceedings. 50 The pertinent rules are Sections 1 and 2,
Rule 19 of the Rules of Court:
SEC. 1. Who may intervene. — A person who has a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other disposition of property
in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original
parties, and whether or not the intervenor’s rights may be fully protected in a
separate proceeding.
SEC. 2. Time to intervene. — The motion to intervene may be filed at any time
before rendition of judgment by the trial court. A copy of the pleading-in-intervention
shall be attached to the motion and served on the original parties.
Thus, the following are the requisites for intervention of a non-party:
(1) Legal interest
(a) in the matter in controversy; or
(b) in the success of either of the parties; or
I against both parties; or
(d) person is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof;
(2) Intervention will not unduly delay or prejudice the adjudication of rights of original
parties;
(3) Intervenor’s rights may not be fully protected in a separate proceeding 51 and
(g)The motion to intervene may be filed at any time before rendition of judgment by
the trial court.
For both the oil companies and DOE, the last requirement is definitely absent. As a rule,
intervention is allowed "before rendition of judgment" as Section 2, Rule 19 expressly
provides. Both filed their separate motions after our decision was promulgated. In Republic
of the Philippines v. Gingoyon,52 a recently decided case which was also an original action
filed in this Court, we declared that the appropriate time to file the motions-in-intervention
was before and not after resolution of the case. 53
The Court, however, has recognized exceptions to Section 2, Rule 19 in the interest of
substantial justice:
The rule on intervention, like all other rules of procedure, is intended to make the
powers of the Court fully and completely available for justice. It is aimed to facilitate a
comprehensive adjudication of rival claims overriding technicalities on the timeliness
of the filing thereof.54
The oil companies assert that they have a legal interest in this case because the
implementation of Ordinance No. 8027 will directly affect their business and property
rights.55
[T]he interest which entitles a person to intervene in a suit between other parties
must be in the matter in litigation and of such direct and immediate character that the
intervenor will either gain or lose by direct legal operation and effect of the judgment.
Otherwise, if persons not parties to the action were allowed to intervene,
proceedings would become unnecessarily complicated, expensive and interminable.
And this would be against the policy of the law. The words "an interest in the subject"
means a direct interest in the cause of action as pleaded, one that would put the
intervenor in a legal position to litigate a fact alleged in the complaint without the
establishment of which plaintiff could not recover. 56
We agree that the oil companies have a direct and immediate interest in the implementation
of Ordinance No. 8027. Their claim is that they will need to spend billions of pesos if they
are compelled to relocate their oil depots out of Manila. Considering that they admitted
knowing about this case from the time of its filing on December 4, 2002, they should have
intervened long before our March 7, 2007 decision to protect their interests. But they did
not.57 Neither did they offer any worthy explanation to justify their late intervention.
Be that as it may, although their motion for intervention was not filed on time, we will allow it
because they raised and presented novel issues and arguments that were not considered
Josef Elvin Campos
by the Court in its March 7, 2007 decision. After all, the allowance or disallowance of a
motion to intervene is addressed to the sound discretion of the court before which the case
is pending.58 Considering the compelling reasons favoring intervention, we do not think that
this will unduly delay or prejudice the adjudication of rights of the original parties. In fact, it
will be expedited since their intervention will enable us to rule on the constitutionality of
Ordinance No. 8027 instead of waiting for the RTC’s decision.
The DOE, on the other hand, alleges that its interest in this case is also direct and
immediate as Ordinance No. 8027 encroaches upon its exclusive and national authority
over matters affecting the oil industry. It seeks to intervene in order to represent the
interests of the members of the public who stand to suffer if the Pandacan Terminals’
operations are discontinued. We will tackle the issue of the alleged encroachment into
DOE’s domain later on. Suffice it to say at this point that, for the purpose of hearing all sides
and considering the transcendental importance of this case, we will also allow DOE’s
intervention.
The Injunctive Writs Are Not Impediments To The Enforcement Of Ordinance No.
8027
Under Rule 65, Section 359 of the Rules of Court, a petition for mandamus may be filed
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.
According to the oil companies, respondent did not unlawfully fail or neglect to enforce
Ordinance No. 8027 because he was lawfully prevented from doing so by virtue of the
injunctive writs and status quo order issued by the RTC of Manila, Branches 39 and 42.
First, we note that while Chevron and Shell still have in their favor the writs of preliminary
injunction and preliminary mandatory injunction, the status quo order in favor of Petron is no
longer in effect since the court granted the joint motion of the parties to withdraw the
complaint and counterclaim.60
Second, the original parties failed to inform the Court about these injunctive writs.
Respondent (who was also impleaded as a party in the RTC cases) defends himself by
saying that he informed the court of the pendency of the civil cases and that a TRO was
issued by the RTC in the consolidated cases filed by Chevron and Shell. It is true that had
the oil companies only intervened much earlier, the Court would not have been left in the
dark about these facts. Nevertheless, respondent should have updated the Court, by way of
manifestation, on such a relevant matter.
In his memorandum, respondent mentioned the issuance of a TRO. Under Section 5 of
Rule 58 of the Rules of Court, a TRO issued by the RTC is effective only for a period of 20
days. This is why, in our March 7, 2007 decision, we presumed with certainty that this had
already lapsed.61 Respondent also mentioned the grant of injunctive writs in his rejoinder
which the Court, however, expunged for being a prohibited pleading. The parties and their
counsels were clearly remiss in their duties to this Court.
In resolving controversies, courts can only consider facts and issues pleaded by the
parties.62 Courts, as well as magistrates presiding over them are not omniscient. They can
only act on the facts and issues presented before them in appropriate pleadings. They may
not even substitute their own personal knowledge for evidence. Nor may they take notice of
matters except those expressly provided as subjects of mandatory judicial notice.
We now proceed to the issue of whether the injunctive writs are legal impediments to the
enforcement of Ordinance No. 8027.
Section 3, Rule 58 of the Rules of Court enumerates the grounds for the issuance of a writ
of preliminary injunction:
SEC. 3. Grounds for issuance of preliminary injunction. ― A preliminary injunction
may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part of
such relief consists in restraining the commission or continuance of the act or acts
complained of, or in requiring the performance of an act or acts, either for a limited
period or perpetually;
(b) That the commission, continuance or nonperformance of the act or acts
complained of during the litigation would probably work injustice to the applicant; or
(g) IThat a party, court, agency or a person is doing, threatening, or is attempting to
do, or is procuring or suffering to be done, some act or acts probably in violation of
the rights of the applicant respecting the subject of the action or proceeding, and
tending to render the judgment ineffectual.
There are two requisites for the issuance of a preliminary injunction: (1) the right to be
protected exists prima facie and (2) the acts sought to be enjoined are violative of that right.
Josef Elvin Campos
It must be proven that the violation sought to be prevented will cause an irreparable
injustice.
The act sought to be restrained here was the enforcement of Ordinance No. 8027. It is a
settled rule that an ordinance enjoys the presumption of validity and, as such, cannot be
restrained by injunction.63 Nevertheless, when the validity of the ordinance is assailed, the
courts are not precluded from issuing an injunctive writ against its enforcement. However,
we have declared that the issuance of said writ is proper only when:
... the petitioner assailing the ordinance has made out a case of
unconstitutionality strong enough to overcome, in the mind of the judge, the
presumption of validity, in addition to a showing of a clear legal right to the remedy
sought....64 (Emphasis supplied)
Judge Reynaldo G. Ros, in his order dated May 19, 2003, stated his basis for issuing the
injunctive writs:
The Court, in resolving whether or not a Writ of Preliminary Injunction or Preliminary
Mandatory Injunction should be issued, is guided by the following requirements: (1) a
clear legal right of the complainant; (2) a violation of that right; and (3) a permanent
and urgent necessity for the Writ to prevent serious damage. The Court believes that
these requisites are present in these cases.
There is no doubt that the plaintiff/petitioners have been legitimately operating their
business in the Pandacan Terminal for many years and they have made substantial
capital investment therein. Every year they were issued Business Permits by the City
of Manila. Its operations have not been declared illegal or contrary to law or morals.
In fact, because of its vital importance to the national economy, it was included in the
Investment Priorities Plan as mandated under the "Downstream Oil Industry
Deregulation Act of 1988 (R.A. 8479). As a lawful business, the plaintiff/petitioners
have a right, therefore, to continue their operation in the Pandacan Terminal and the
right to protect their investments. This is a clear and unmistakable right of the
plaintiff/petitioners.
The enactment, therefore, of City Ordinance No. 8027 passed by the City Council of
Manila reclassifying the area where the Pandacan Terminal is located from Industrial
II to Commercial I and requiring the plaintiff/petitioners to cease and desist from the
operation of their business has certainly violated the rights of the plaintiff/petitioners
to continue their legitimate business in the Pandacan Terminal and deprived them of
their huge investments they put up therein. Thus, before the Court, therefore,
determines whether the Ordinance in question is valid or not, a Writ of Preliminary
Injunction and a Writ of Mandatory Injunction be issued to prevent serious and
irreparable damage to plaintiff/petitioners.65
Nowhere in the judge’s discussion can we see that, in addition to a showing of a
clear legal right of Chevron and Shell to the remedy sought, he was convinced that
they had made out a case of unconstitutionality or invalidity strong enough to
overcome the presumption of validity of the ordinance. Statutes and ordinances are
presumed valid unless and until the courts declare the contrary in clear and unequivocal
terms.66 The mere fact that the ordinance is alleged to be unconstitutional or invalid will not
entitle a party to have its enforcement enjoined. 67 The presumption is all in favor of validity.
The reason for this is obvious:
The action of the elected representatives of the people cannot be lightly set aside.
The councilors must, in the very nature of things, be familiar with the necessities of
their particular municipality and with all the facts and circumstances which surround
the subject and necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential to the well
being of the people . . . The Judiciary should not lightly set aside legislative action
when there is not a clear invasion of personal or property rights under the guise of
police regulation.68
X—x—x
...[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. 69
The oil companies argue that this presumption must be set aside when the invalidity or
unreasonableness appears on the face of the ordinance itself. 70 We see no reason to set
aside the presumption. The ordinance, on its face, does not at all appear to be
Josef Elvin Campos
unconstitutional. It reclassified the subject area from industrial to commercial. Prima facie,
this power is within the power of municipal corporations:
The power of municipal corporations to divide their territory into industrial,
commercial and residential zones is recognized in almost all jurisdictions inasmuch
as it is derived from the police power itself and is exercised for the protection and
benefit of their inhabitants.71
X—x—x
There can be no doubt that the City of Manila has the power to divide its territory into
residential and industrial zones, and to prescribe that offensive and unwholesome
trades and occupations are to be established exclusively in the latter zone.
xxx xxx xxx
Likewise, it cannot be denied that the City of Manila has the authority, derived from
the police power, of forbidding the appellant to continue the manufacture of toyo in
the zone where it is now situated, which has been declared residential.... 72
Courts will not invalidate an ordinance unless it clearly appears that it is unconstitutional.
There is no such showing here. Therefore, the injunctive writs issued in the Manila RTC’s
May 19, 2003 order had no leg to stand on.
We are aware that the issuance of these injunctive writs is not being assailed as tainted with
grave abuse of discretion. However, we are confronted with the question of whether these
writs issued by a lower court are impediments to the enforcement of Ordinance No. 8027
(which is the subject of the mandamus petition). As already discussed, we rule in the
negative.
Ordinance No. 8027 Was Not Superseded By Ordinance No. 8119
The March 7, 2007 decision did not take into consideration the passage of Ordinance No.
8119 entitled "An Ordinance Adopting the Manila Comprehensive Land Use Plan and
Zoning Regulations of 2006 and Providing for the Administration, Enforcement and
Amendment thereto" which was approved by respondent on June 16, 2006. The simple
reason was that the Court was never informed about this ordinance.
While courts are required to take judicial notice of the laws enacted by Congress, the rule
with respect to local ordinances is different. Ordinances are not included in the enumeration
of matters covered by mandatory judicial notice under Section 1, Rule 129 of the Rules of
Court.73
Although, Section 50 of RA 40974 provides that:
SEC. 50 Judicial notice of ordinances. - All courts sitting in the city shall take judicial
notice of the ordinances passed by the [Sangguniang Panglungsod].
This cannot be taken to mean that this Court, since it has its seat in the City of Manila,
should have taken steps to procure a copy of the ordinance on its own, relieving the party of
any duty to inform the Court about it.
Even where there is a statute that requires a court to take judicial notice of municipal
ordinances, a court is not required to take judicial notice of ordinances that are not before it
and to which it does not have access. The party asking the court to take judicial notice is
obligated to supply the court with the full text of the rules the party desires it to have notice
of.75 Counsel should take the initiative in requesting that a trial court take judicial notice of
an ordinance even where a statute requires courts to take judicial notice of local
ordinances.76
The intent of a statute requiring a court to take judicial notice of a local ordinance is to
remove any discretion a court might have in determining whether or not to take notice of an
ordinance. Such a statute does not direct the court to act on its own in obtaining evidence
for the record and a party must make the ordinance available to the court for it to take
notice.77
In its defense, respondent claimed that he did not inform the Court about the enactment of
Ordinance No. 8119 because he believed that it was different from Ordinance No. 8027 and
that the two were not inconsistent with each other. 78
In the same way that we deem the intervenors’ late intervention in this case unjustified, we
find the failure of respondent, who was an original party here, inexcusable.
The Rule On Judicial Admissions Is Not Applicable Against Respondent
The oil companies assert that respondent judicially admitted that Ordinance No. 8027 was
repealed by Ordinance No. 8119 in civil case no. 03-106379 (where Petron assailed the
constitutionality of Ordinance No. 8027) when the parties in their joint motion to withdraw
complaint and counterclaim stated that "the issue ...has been rendered moot and academic
by virtue of the passage of [Ordinance No. 8119]." 79 They contend that such admission
worked as an estoppel against the respondent.
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Respondent countered that this stipulation simply meant that Petron was recognizing the
validity and legality of Ordinance No. 8027 and that it had conceded the issue of said
ordinance’s constitutionality, opting instead to question the validity of Ordinance No.
8119.80 The oil companies deny this and further argue that respondent, in his answer in civil
case no. 06-115334 (where Chevron and Shell are asking for the nullification of Ordinance
No. 8119), expressly stated that Ordinance No. 8119 replaced Ordinance No. 8027: 81
... Under Ordinance No. 8027, businesses whose uses are not in accord with the
reclassification were given six months to cease [their] operation. Ordinance No.
8119, which in effect, replaced Ordinance [No.] 8027, merely took note of the time
frame provided for in Ordinance No. 8119.... Ordinance No. 8119 thus provided for
an even longer term, that is[,] seven years; 82 (Emphasis supplied)
Rule 129, Section 4 of the Rules of Court provides:
Section 4. Judicial admissions. ― An admission, verbal or written, made by a party
in the course of the proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was made through palpable
mistake or that no such admission was made. (Emphasis supplied)
While it is true that a party making a judicial admission cannot subsequently take a position
contrary to or inconsistent with what was pleaded, 83 the aforestated rule is not applicable
here. Respondent made the statements regarding the ordinances in civil case nos. 03-
106379 and 06-115334 which are not "the same" as this case before us. 84 To constitute a
judicial admission, the admission must be made in the same case in which it is offered.
Hence, respondent is not estopped from claiming that Ordinance No. 8119 did not
supersede Ordinance No. 8027. On the contrary, it is the oil companies which should be
considered estopped. They rely on the argument that Ordinance No. 8119 superseded
Ordinance No. 8027 but, at the same time, also impugn its (8119’s) validity. We frown on
the adoption of inconsistent positions and distrust any attempt at clever positioning under
one or the other on the basis of what appears advantageous at the moment. Parties cannot
take vacillating or contrary positions regarding the validity of a statute 85 or ordinance.
Nonetheless, we will look into the merits of the argument of implied repeal.
Ordinance No. 8119 Did Not Impliedly Repeal Ordinance No. 8027
Both the oil companies and DOE argue that Ordinance No. 8119 repealed Ordinance No.
8027. They assert that although there was no express repeal 86 of Ordinance No. 8027,
Ordinance No. 8119 impliedly repealed it.
According to the oil companies, Ordinance No. 8119 reclassified the area covering the
Pandacan Terminals to "High Density Residential/Mixed Use Zone (R-3/MXD)" 87 whereas
Ordinance No. 8027 reclassified the same area from Industrial II to Commercial I:
SECTION 1. For the purpose of promoting sound urban planning and ensuring health,
public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its
adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the
north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the
southwest, and Estero de Pancacan in the west[,] PNR Railroad in the northwest area,
Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in
the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero
St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to
Commercial I. (Emphasis supplied)
Moreover, Ordinance No. 8119 provides for a phase-out of seven years:
SEC. 72. Existing Non-Conforming Uses and Buildings. - The lawful use of any
building, structure or land at the time of the adoption of this Ordinance may be
continued, although such use does not conform with the provision of the Ordinance,
provided:
xxx xxx xxx
(g) In case the non-conforming use is an industrial use:
xxx xxx xxx
d. The land use classified as non-conforming shall program the phase-
out and relocation of the non-conforming use within seven (7) years
from the date of effectivity of this Ordinance. (Emphasis supplied)
This is opposed to Ordinance No. 8027 which compels affected entities to vacate the area
within six months from the effectivity of the ordinance:
SEC. 3. Owners or operators of industries and other businesses, the operation of
which are no longer permitted under Section 1 hereof, are hereby given a period of
six (6) months from the date of effectivity of this Ordinance within which to cease and
desist from the operation of businesses which are hereby in consequence,
disallowed.
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Ordinance No. 8119 also designated the Pandacan oil depot area as a "Planned Unit
Development/Overlay Zone (O-PUD)":
SEC. 23. Use Regulations in Planned Unit Development/Overlay Zone (O-PUD). –
O-PUD Zones are identified specific sites in the City of Manila wherein the project
site is comprehensively planned as an entity via unitary site plan which permits
flexibility in planning/ design, building siting, complementarily of building types and
land uses, usable open spaces and the preservation of significant natural land
features, pursuant to regulations specified for each particular PUD. Enumerated
below are identified PUD:
xxx xxx xxx
6. Pandacan Oil Depot Area
xxx xxx xxx
Enumerated below are the allowable uses:
1. all uses allowed in all zones where it is located
2. the [Land Use Intensity Control (LUIC)] under which zones are located shall, in all
instances be complied with
3. the validity of the prescribed LUIC shall only be [superseded] by the development
controls and regulations specified for each PUD as provided for each PUD as
provided for by the masterplan of respective PUDs. 88 (Emphasis supplied)
Respondent claims that in passing Ordinance No. 8119, the Sanggunian did not intend to
repeal Ordinance No. 8027 but meant instead to carry over 8027’s provisions to 8119 for
the purpose of making Ordinance No. 8027 applicable to the oil companies even after the
passage of Ordinance No. 8119.89 He quotes an excerpt from the minutes of the July 27,
2004 session of the Sanggunian during the first reading of Ordinance No. 8119:
Member GARCIA: Your Honor, iyong patungkol po roon sa oil depot doon sa amin
sa Sixth District sa Pandacan, wala pong nakalagay eith sa ordinansa rito na taliwas
o kakaiba roon sa ordinansang ipinasa noong nakaraang Konseho, iyong Ordinance
No. 8027. So kung ano po ang nandirito sa ordinansa na ipinasa ninyo last time, iyon
lang po ang ni-lift eithe at inilagay eith. At eith eith ordinansang …iyong naipasa ng
huling Konseho, niri-classify [ninyo] from Industrial II to Commercial C-1 ang area ng
Pandacan kung nasaan ang oil depot. So ini-lift lang po [eithe] iyong definition,
density, at saka po yon pong … ng… noong ordinansa ninyo na siya eith naming
inilagay eith, iniba lang po naming iyong title. So wala po kaming binago na
taliwas o nailagay na taliwas doon sa ordinansang ipinasa ninyo, ni-lift lang po
[eithe] from Ordinance No. 8027."90 (Emphasis supplied)
We agree with respondent.
Repeal by implication proceeds on the premise that where a statute of later date clearly
reveals the intention of the legislature to abrogate a prior act on the subject, that intention
must be given effect.91
There are two kinds of implied repeal. The first is: where the provisions in the two acts on
the same subject matter are irreconcilably contradictory, the latter act, to the extent of the
conflict, constitutes an implied repeal of the earlier one. 92 The second is: if the later act
covers the whole subject of the earlier one and is clearly intended as a substitute, it will
operate to repeal the earlier law.93 The oil companies argue that the situation here falls
under the first category.
Implied repeals are not favored and will not be so declared unless the intent of the
legislators is manifest.94 As statutes and ordinances are presumed to be passed only after
careful deliberation and with knowledge of all existing ones on the subject, it follows that, in
passing a law, the legislature did not intend to interfere with or abrogate a former law
relating to the same subject matter. 95 If the intent to repeal is not clear, the later act should
be construed as a continuation of, and not a substitute for, the earlier act. 96
These standards are deeply enshrined in our jurisprudence. We disagree that, in enacting
Ordinance No. 8119, there was any indication of the legislative purpose to repeal Ordinance
No. 8027.97 The excerpt quoted above is proof that there was never such an intent. While it
is true that both ordinances relate to the same subject matter, i.e. classification of the land
use of the area where Pandacan oil depot is located, if there is no intent to repeal the earlier
enactment, every effort at reasonable construction must be made to reconcile the
ordinances so that both can be given effect:
The fact that a later enactment may relate to the same subject matter as that of an
earlier statute is not of itself sufficient to cause an implied repeal of the prior act,
since the new statute may merely be cumulative or a continuation of the old one.
What is necessary is a manifest indication of legislative purpose to repeal. 98
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For the first kind of implied repeal, there must be an irreconcilable conflict between the two
ordinances. There is no conflict between the two ordinances. Ordinance No. 8027
reclassified the Pandacan area from Industrial II to Commercial I. Ordinance No. 8119, in
Section 23, designated it as a "Planned Unit Development/Overlay Zone (O-PUD)." In its
Annex C which defined the zone boundaries, 99 the Pandacan area was shown to be within
the "High Density Residential/Mixed Use Zone (R-3/MXD)." These zone classifications in
Ordinance No. 8119 are not inconsistent with the reclassification of the Pandacan area from
Industrial to Commercial in Ordinance No. 8027. The "O-PUD" classification merely made
Pandacan a "project site ... comprehensively planned as an entity via unitary site plan which
permits flexibility in planning/design, building siting, complementarity of building types and
land uses, usable open spaces and the preservation of significant natural land
features...."100 Its classification as "R-3/MXD" means that it should "be used primarily for
high-rise housing/dwelling purposes and limited complementary/supplementary trade,
services and business activities." 101 There is no conflict since both ordinances actually have
a common objective, i.e., to shift the zoning classification from industrial to commercial
(Ordinance No. 8027) or mixed residential/commercial (Ordinance No. 8119).
Moreover, it is a well-settled rule in statutory construction that a subsequent general law
does not repeal a prior special law on the same subject unless it clearly appears that the
legislature has intended by the latter general act to modify or repeal the earlier special
law. Generalia specialibus non derogant (a general law does not nullify a specific or special
law).102 This is so even if the provisions of the general law are sufficiently comprehensive to
include what was set forth in the special act. 103 The special act and the general law must
stand together, one as the law of the particular subject and the other as the law of general
application.104 The special law must be taken as intended to constitute an exception to, or a
qualification of, the general act or provision. 105
The reason for this is that the legislature, in passing a law of special character,
considers and makes special provisions for the particular circumstances dealt with
by the special law. This being so, the legislature, by adopting a general law
containing provisions repugnant to those of the special law and without making any
mention of its intention to amend or modify such special law, cannot be deemed to
have intended an amendment, repeal or modification of the latter. 106
Ordinance No. 8027 is a special law 107 since it deals specifically with a certain area
described therein (the Pandacan oil depot area) whereas Ordinance No. 8119 can be
considered a general law108 as it covers the entire city of Manila.
The oil companies assert that even if Ordinance No. 8027 is a special law, the existence of
an all-encompassing repealing clause in Ordinance No. 8119 evinces an intent on the part
of the Sanggunian to repeal the earlier ordinance:
Sec. 84. Repealing Clause. – All ordinances, rules, regulations in conflict with the
provisions of this Ordinance are hereby repealed; PROVIDED, That the rights that
are vested upon the effectivity of this Ordinance shall not be impaired.
They cited Hospicio de San Jose de Barili, Cebu City v. Department of Agrarian Reform:109
The presence of such general repealing clause in a later statute clearly indicates the
legislative intent to repeal all prior inconsistent laws on the subject matter, whether
the prior law is a general law or a special law... Without such a clause, a later
general law will ordinarily not repeal a prior special law on the same subject. But with
such clause contained in the subsequent general law, the prior special law will be
deemed repealed, as the clause is a clear legislative intent to bring about that
result.110
This ruling in not applicable here. The repealing clause of Ordinance No. 8119 cannot be
taken to indicate the legislative intent to repeal all prior inconsistent laws on the subject
matter, including Ordinance No. 8027, a special enactment, since the aforequoted minutes
(an official record of the discussions in the Sanggunian) actually indicated the clear intent to
preserve the provisions of Ordinance No. 8027.
To summarize, the conflict between the two ordinances is more apparent than real. The two
ordinances can be reconciled. Ordinance No. 8027 is applicable to the area particularly
described therein whereas Ordinance No. 8119 is applicable to the entire City of Manila.
Mandamus Lies To Compel Respondent Mayor To Enforce Ordinance No. 8027
The oil companies insist that mandamus does not lie against respondent in consideration of
the separation of powers of the executive and judiciary. 111 This argument is misplaced.
Indeed,
[the] Courts will not interfere by mandamus proceedings with the legislative [or
executive departments] of the government in the legitimate exercise of its
Josef Elvin Campos
powers, except to enforce mere ministerial acts required by law to be
performed by some officer thereof.112 (Emphasis Supplied)
since this is the function of a writ of mandamus, which is the power to compel "the
performance of an act which the law specifically enjoins as a duty resulting from office, trust
or station."113
They also argue that petitioners had a plain, speedy and adequate remedy to compel
respondent to enforce Ordinance No. 8027 which was to seek relief from the President of
the Philippines through the Secretary of the Department of Interior and Local Government
(DILG) by virtue of the President’s power of supervision over local government units. Again,
we disagree. A party need not go first to the DILG in order to compel the enforcement of an
ordinance. This suggested process would be unreasonably long, tedious and consequently
injurious to the interests of the local government unit (LGU) and its constituents whose
welfare is sought to be protected. Besides, petitioners’ resort to an original action
for mandamus before this Court is undeniably allowed by the Constitution. 114
Ordinance No. 8027 Is Constitutional And Valid
Having ruled that there is no impediment to the enforcement of Ordinance No. 8027, we
now proceed to make a definitive ruling on its constitutionality and validity.
The tests of a valid ordinance are well established. For an ordinance to be valid, it must not
only be within the corporate powers of the LGU to enact and be passed according to the
procedure prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair
or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with public policy and (6) must not be
unreasonable.115
The City of Manila Has The Power To Enact Ordinance No. 8027
Ordinance No. 8027 was passed by the Sangguniang Panlungsod of Manila in the exercise
of its police power. Police power is the plenary power vested in the legislature to make
statutes and ordinances to promote the health, morals, peace, education, good order or
safety and general welfare of the people. 116 This power flows from the recognition that salus
populi est suprema lex (the welfare of the people is the supreme law). 117 While police power
rests primarily with the national legislature, such power may be delegated. 118 Section 16 of
the LGC, known as the general welfare clause, encapsulates the delegated police power to
local governments:119
Section 16. General Welfare. ― Every local government unit shall exercise the
preserve the comfort and convenience of their inhabitants.
LGUs like the City of Manila exercise police power through their respective legislative
bodies, in this case, the Sangguniang Panlungsod or the city council. Specifically,
the Sanggunian can enact ordinances for the general welfare of the city:
Section. 458. – Powers, Duties, Functions and Compensation. – (a)
The sangguniang panglungsod, as the legislative branch of the city, shall enact
city and its inhabitants pursuant to Section 16 of this Code xxxx
This police power was also provided for in RA 409 or the Revised Charter of the City of
Manila:
Section 18. Legislative powers. — The [City Council] shall have the following
legislative powers:
xxx xxx xxx
(g) To enact all ordinances it may deem necessary and proper for the sanitation and
safety, the furtherance of the prosperity, and the promotion of the morality, peace,
good order, comfort, convenience, and general welfare of the city and its inhabitants,
and such others as may be necessary to carry into effect and discharge the powers
and duties conferred by this chapter xxxx120
Specifically, the Sanggunian has the power to "reclassify land within the jurisdiction of the
city."121
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The Enactment Of Ordinance No. 8027 Is A Legitimate Exercise Of Police Power
As with the State, local governments may be considered as having properly exercised their
police power only if the following requisites are met: (1) the interests of the public generally,
as distinguished from those of a particular class, require its exercise and (2) the means
employed are reasonably necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals. In short, there must be a concurrence of a lawful subject and a
lawful method.122
Ordinance No. 8027 was enacted "for the purpose of promoting sound urban planning,
ensuring health, public safety and general welfare" 123 of the residents of Manila.
The Sanggunian was impelled to take measures to protect the residents of Manila from
catastrophic devastation in case of a terrorist attack on the Pandacan Terminals. Towards
this objective, the Sanggunian reclassified the area defined in the ordinance from industrial
to commercial.
The following facts were found by the Committee on Housing, Resettlement and Urban
Development of the City of Manila which recommended the approval of the ordinance:
(1) the depot facilities contained 313.5 million liters of highly flammable and highly volatile
products which include petroleum gas, liquefied petroleum gas, aviation fuel, diesel,
gasoline, kerosene and fuel oil among others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacañang Palace and
(4) in case of an explosion or conflagration in the depot, the fire could spread to the
neighboring communities.124
The ordinance was intended to safeguard the rights to life, security and safety of all the
inhabitants of Manila and not just of a particular class. 125 The depot is perceived, rightly or
wrongly, as a representation of western interests which means that it is a terrorist target. As
long as it there is such a target in their midst, the residents of Manila are not safe. It
therefore became necessary to remove these terminals to dissipate the threat. According to
respondent:
Such a public need became apparent after the 9/11 incident which showed that what
was perceived to be impossible to happen, to the most powerful country in the world
at that, is actually possible. The destruction of property and the loss of thousands of
lives on that fateful day became the impetus for a public need. In the aftermath of the
9/11 tragedy, the threats of terrorism continued [such] that it became imperative for
governments to take measures to combat their effects. 126
Wide discretion is vested on the legislative authority to determine not only what the interests
of the public require but also what measures are necessary for the protection of such
interests.127 Clearly, the Sanggunian was in the best position to determine the needs of its
constituents.
In the exercise of police power, property rights of individuals may be subjected to restraints
and burdens in order to fulfill the objectives of the government. 128 Otherwise stated, the
government may enact legislation that may interfere with personal liberty, property, lawful
businesses and occupations to promote the general welfare. 129 However, the interference
must be reasonable and not arbitrary. And to forestall arbitrariness, the methods or means
used to protect public health, morals, safety or welfare must have a reasonable relation to
the end in view.130
The means adopted by the Sanggunian was the enactment of a zoning ordinance which
reclassified the area where the depot is situated from industrial to commercial. A zoning
ordinance is defined as a local city or municipal legislation which logically arranges,
prescribes, defines and apportions a given political subdivision into specific land uses as
present and future projection of needs. 131 As a result of the zoning, the continued operation
of the businesses of the oil companies in their present location will no longer be permitted.
The power to establish zones for industrial, commercial and residential uses is derived from
the police power itself and is exercised for the protection and benefit of the residents of a
locality.132 Consequently, the enactment of Ordinance No. 8027 is within the power of
the Sangguniang Panlungsod of the City of Manila and any resulting burden on those
affected cannot be said to be unjust:
There can be no doubt that the City of Manila has the power to divide its territory into
residential and industrial zones, and to prescribe that offensive and unwholesome
trades and occupations are to be established exclusively in the latter zone.
"The benefits to be derived by cities adopting such regulations (zoning) may be
summarized as follows: They attract a desirable and assure a permanent citizenship;
they foster pride in and attachment to the city; they promote happiness and
contentment; they stabilize the use and value of property and promote the peace,
Josef Elvin Campos
[tranquility], and good order of the city. We do not hesitate to say that the attainment
of these objects affords a legitimate field for the exercise of the police power. He who
owns property in such a district is not deprived of its use by such regulations. He
may use it for the purposes to which the section in which it is located is dedicated.
That he shall not be permitted to use it to the desecration of the community
constitutes no unreasonable or permanent hardship and results in no unjust burden."
xxx xxx xxx
"The 14th Amendment protects the citizen in his right to engage in any lawful
business, but it does not prevent legislation intended to regulate useful occupations
which, because of their nature or location, may prove injurious or offensive to the
public."133
We entertain no doubt that Ordinance No. 8027 is a valid police power measure because
there is a concurrence of lawful subject and lawful method.
Ordinance No. 8027 Is Not Unfair, Oppressive Or Confiscatory Which Amounts To
Taking Without Compensation
According to the oil companies, Ordinance No. 8027 is unfair and oppressive as it does not
only regulate but also absolutely prohibits them from conducting operations in the City of
Manila. Respondent counters that this is not accurate since the ordinance merely prohibits
the oil companies from operating their businesses in the Pandacan area.
Indeed, the ordinance expressly delineated in its title and in Section 1 what it pertained to.
Therefore, the oil companies’ contention is not supported by the text of the ordinance.
Respondent succinctly stated that:
The oil companies are not forbidden to do business in the City of Manila. They may
still very well do so, except that their oil storage facilities are no longer allowed in the
Pandacan area. Certainly, there are other places in the City of Manila where they
can conduct this specific kind of business. Ordinance No. 8027 did not render the oil
companies illegal. The assailed ordinance affects the oil companies business only in
so far as the Pandacan area is concerned.134
The oil companies are not prohibited from doing business in other appropriate zones in
Manila. The City of Manila merely exercised its power to regulate the businesses and
industries in the zones it established:
As to the contention that the power to regulate does not include the power to
prohibit, it will be seen that the ordinance copied above does not prohibit the
installation of motor engines within the municipality of Cabanatuan but only within the
zone therein fixed. If the municipal council of Cabanatuan is authorized to establish
said zone, it is also authorized to provide what kind of engines may be installed
therein. In banning the installation in said zone of all engines not excepted in the
ordinance, the municipal council of Cabanatuan did no more than regulate their
installation by means of zonification.135
The oil companies aver that the ordinance is unfair and oppressive because they have
invested billions of pesos in the depot. 136 Its forced closure will result in huge losses in
income and tremendous costs in constructing new facilities.
Their contention has no merit. In the exercise of police power, there is a limitation on or
restriction of property interests to promote public welfare which involves no compensable
taking. Compensation is necessary only when the state’s power of eminent domain is
exercised. In eminent domain, property is appropriated and applied to some public purpose.
Property condemned under the exercise of police power, on the other hand, is noxious or
intended for a noxious or forbidden purpose and, consequently, is not compensable. 137 The
restriction imposed to protect lives, public health and safety from danger is not a taking. It is
merely the prohibition or abatement of a noxious use which interferes with paramount rights
of the public.
Property has not only an individual function, insofar as it has to provide for the needs of the
owner, but also a social function insofar as it has to provide for the needs of the other
members of society.138 The principle is this:
Police power proceeds from the principle that every holder of property, however
absolute and unqualified may be his title, holds it under the implied liability that his
use of it shall not be injurious to the equal enjoyment of others having an equal right
to the enjoyment of their property, nor injurious to the right of the community. Rights
of property, like all other social and conventional rights, are subject to reasonable
limitations in their enjoyment as shall prevent them from being injurious, and to such
reasonable restraints and regulations established by law as the legislature, under the
governing and controlling power vested in them by the constitution, may think
necessary and expedient.139
Josef Elvin Campos
In the regulation of the use of the property, nobody else acquires the use or interest therein,
hence there is no compensable taking. 140 In this case, the properties of the oil companies
and other businesses situated in the affected area remain theirs. Only their use is restricted
although they can be applied to other profitable uses permitted in the commercial zone.
Ordinance No. 8027 Is Not Partial And Discriminatory
The oil companies take the position that the ordinance has discriminated against and
singled out the Pandacan Terminals despite the fact that the Pandacan area is congested
with buildings and residences that do not comply with the National Building Code, Fire Code
and Health and Sanitation Code.141
This issue should not detain us for long. An ordinance based on reasonable classification
does not violate the constitutional guaranty of the equal protection of the law. 142 The
requirements for a valid and reasonable classification are: (1) it must rest on substantial
distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to
existing conditions only and (4) it must apply equally to all members of the same class. 143
The law may treat and regulate one class differently from another class provided there are
real and substantial differences to distinguish one class from another. 144 Here, there is a
reasonable classification. We reiterate that what the ordinance seeks to prevent is a
catastrophic devastation that will result from a terrorist attack. Unlike the depot, the
surrounding community is not a high-value terrorist target. Any damage caused by fire or
explosion occurring in those areas would be nothing compared to the damage caused by a
fire or explosion in the depot itself. Accordingly, there is a substantial distinction. The
enactment of the ordinance which provides for the cessation of the operations of these
terminals removes the threat they pose. Therefore it is germane to the purpose of the
ordinance. The classification is not limited to the conditions existing when the ordinance
was enacted but to future conditions as well. Finally, the ordinance is applicable to all
businesses and industries in the area it delineated.
Ordinance No. 8027 is Not Inconsistent With RA 7638 And RA 8479
The oil companies and the DOE assert that Ordinance No. 8027 is unconstitutional because
it contravenes RA 7638 (DOE Act of 1992) 145 and RA 8479 (Downstream Oil Industry
Deregulation Law of 1998).146 They argue that through RA 7638, the national legislature
declared it a policy of the state "to ensure a continuous, adequate, and economic supply of
energy"147 and created the DOE to implement this policy. Thus, under Section 5 I, DOE is
empowered to "establish and administer programs for the exploration, transportation,
marketing, distribution, utilization, conservation, stockpiling, and storage of energy
resources." Considering that the petroleum products contained in the Pandacan Terminals
are major and critical energy resources, they conclude that their administration, storage,
distribution and transport are of national interest and fall under DOE’s primary and exclusive
jurisdiction.148
They further assert that the terminals are necessary for the delivery of immediate and
adequate supply of oil to its recipients in the most economical way. 149 Local legislation such
as Ordinance No. 8027 (which effectively calls for the removal of these terminals) allegedly
frustrates the state policy of ensuring a continuous, adequate, and economic supply of
energy expressed in RA 7638, a national law. 150 Likewise, the ordinance thwarts the
determination of the DOE that the terminals’ operations should be merely scaled down and
not discontinued.151 They insist that this should not be allowed considering that it has a
nationwide economic impact and affects public interest transcending the territorial
jurisdiction of the City of Manila.152
According to them, the DOE’s supervision over the oil industry under RA 7638 was
subsequently underscored by RA 8479, particularly in Section 7 thereof:
SECTION 7. Promotion of Fair Trade Practices. ― The Department of Trade and
Industry (DTI) and DOE shall take all measures to promote fair trade and prevent
cartelization, monopolies, combinations in restraint of trade, and any unfair
competition in the Industry as defined in Article 186 of the Revised Penal Code, and
Articles 168 and 169 of Republic Act No. 8293, otherwise known as the "Intellectual
Property Rights Law". The DOE shall continue to encourage certain practices in
the Industry which serve the public interest and are intended to achieve
efficiency and cost reduction, ensure continuous supply of petroleum
products, and enhance environmental protection. These practices may include
borrow-and-loan agreements, rationalized depot and manufacturing operations,
hospitality agreements, joint tanker and pipeline utilization, and joint actions on oil
spill control and fire prevention. (Emphasis supplied)
Respondent counters that DOE’s regulatory power does not preclude LGUs from exercising
their police power.153
Josef Elvin Campos
Indeed, ordinances should not contravene existing statutes enacted by Congress. The
rationale for this was clearly explained in Magtajas vs. Pryce Properties Corp., Inc.:154
The rationale of the requirement that the ordinances should not contravene a statute
is obvious. Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred on them by Congress
as the national lawmaking body. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter. It is a heresy to suggest that the local
government units can undo the acts of Congress, from which they have derived their
power in the first place, and negate by mere ordinance the mandate of the statute.
"Municipal corporations owe their origin to, and derive their powers and rights wholly
from the legislature. It breathes into them the breath of life, without which they
cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and
control. Unless there is some constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of so great a folly and so
great a wrong, sweep from existence all of the municipal corporations in the State,
and the corporation could not prevent it. We know of no limitation on the right so far
as to the corporation themselves are concerned. They are, so to phrase it, the mere
tenants at will of the legislature."
This basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening
the policy of local autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units although in
significantly reduced degree now than under our previous Constitutions. The power
to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power to
tax, which cannot now be withdrawn by mere statute. By and large, however, the
national legislature is still the principal of the local government units, which cannot
defy its will or modify or violate it. 155
The question now is whether Ordinance No. 8027 contravenes RA 7638 and RA 8479. It
does not.
Under Section 5 I of RA 7638, DOE was given the power to "establish and administer
programs for the exploration, transportation, marketing, distribution, utilization,
conservation, stockpiling, and storage of energy resources." On the other hand, under
Section 7 of RA 8749, the DOE "shall continue to encourage certain practices in the
Industry which serve the public interest and are intended to achieve efficiency and cost
reduction, ensure continuous supply of petroleum products." Nothing in these statutes
prohibits the City of Manila from enacting ordinances in the exercise of its police power.
The principle of local autonomy is enshrined in and zealously protected under the
Constitution. In Article II, Section 25 thereof, the people expressly adopted the following
policy:
Section 25. The State shall ensure the autonomy of local governments.
An entire article (Article X) of the Constitution has been devoted to guaranteeing and
promoting the autonomy of LGUs. The LGC was specially promulgated by Congress to
ensure the autonomy of local governments as mandated by the Constitution:
Sec. 2. Declaration of Policy. ― (a) It is hereby declared the policy of the State
that the territorial and political subdivisions of the State shall enjoy genuine
and meaningful local autonomy to enable them to attain their fullest
development as self-reliant communities and make them more effective
partners in the attainment of national goals. Toward this end, the State shall
provide for a more responsive and accountable local government structure instituted
through a system of decentralization whereby local government units shall be given
more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the National Government to the local government
units. (Emphasis supplied)
We do not see how the laws relied upon by the oil companies and DOE stripped the City of
Manila of its power to enact ordinances in the exercise of its police power and to reclassify
the land uses within its jurisdiction. To guide us, we shall make a brief survey of our
decisions where the police power measure of the LGU clashed with national laws.
In Tan v. Pereña,156 the Court ruled that Ordinance No. 7 enacted by the municipality of
Daanbantayan, Cebu allowing the operation of three cockpits was invalid for violating PD
449 (or the Cockfighting Law of 1974) which permitted only one cockpit per municipality.
Josef Elvin Campos
In Batangas CATV, Inc. v. Court of Appeals,157 the Sangguniang Panlungsod of Batangas
City enacted Resolution No. 210 granting Batangas CATV, Inc. a permit to operate a cable
television (CATV) system in Batangas City. The Court held that the LGU did not have the
authority to grant franchises to operate a CATV system because it was the National
Telecommunications Commission (NTC) that had the power under EO Nos. 205 and 436 to
regulate CATV operations. EO 205 mandated the NTC to grant certificates of authority to
CATV operators while EO 436 vested on the NTC the power to regulate and supervise the
CATV industry.
In Lina, Jr. v. Paño,158 we held that Kapasiyahan Bilang 508, Taon 1995 of
the Sangguniang Panlalawigan of Laguna could not be used as justification to prohibit lotto
in the municipality of San Pedro, Laguna because lotto was duly authorized by RA 1169, as
amended by BP 42. This law granted a franchise to the Philippine Charity Sweepstakes
Office and allowed it to operate lotteries.
In Magtajas v. Pryce Properties Corp., Inc.,159 the Sangguniang Panlungsod of Cagayan de
Oro City passed Ordinance Nos. 3353 and 3375-93 prohibiting the operation of casinos in
the city. We ruled that these ordinances were void for contravening PD 1869 or the charter
of the Philippine Amusements and Gaming Corporation which had the power to operate
casinos.
The common dominator of all of these cases is that the national laws were clearly and
expressly in conflict with the ordinances/resolutions of the LGUs. The inconsistencies were
so patent that there was no room for doubt. This is not the case here.
The laws cited merely gave DOE general powers to "establish and administer programs for
the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling,
and storage of energy resources" and "to encourage certain practices in the [oil] industry
which serve the public interest and are intended to achieve efficiency and cost reduction,
ensure continuous supply of petroleum products." These powers can be exercised without
emasculating the LGUs of the powers granted them. When these ambiguous powers are
pitted against the unequivocal power of the LGU to enact police power and zoning
ordinances for the general welfare of its constituents, it is not difficult to rule in favor of the
latter. Considering that the powers of the DOE regarding the Pandacan Terminals are not
categorical, the doubt must be resolved in favor of the City of Manila:
SECTION 5. Rules of Interpretation. ― In the interpretation of the provisions of this
Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted
in its favor, and in case of doubt, any question thereon shall be resolved in favor of
devolution of powers and of the lower local government unit. Any fair and reasonable
doubt as to the existence of the power shall be interpreted in favor of the local
government unit concerned;
xxx xxx xxx
(g) IThe general welfare provisions in this Code shall be liberally interpreted to give
more powers to local government units in accelerating economic development and
upgrading the quality of life for the people in the community xxxx
The least we can do to ensure genuine and meaningful local autonomy is not to
force an interpretation that negates powers explicitly granted to local governments.
To rule against the power of LGUs to reclassify areas within their jurisdiction will
subvert the principle of local autonomy guaranteed by the Constitution. 160 As we
have noted in earlier decisions, our national officials should not only comply with the
constitutional provisions on local autonomy but should also appreciate the spirit and
liberty upon which these provisions are based. 161
The DOE Cannot Exercise The Power Of Control Over LGUs
Another reason that militates against the DOE’s assertions is that Section 4 of Article X of
the Constitution confines the President’s power over LGUs to one of general supervision:
SECTION 4. The President of the Philippines shall exercise general supervision over local
governments. Xxxx
Consequently, the Chief Executive or his or her alter egos, cannot exercise the power of
control over them.162 Control and supervision are distinguished as follows:
[Supervision] means overseeing or the power or authority of an officer to see that
subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the
former may take such action or step as prescribed by law to make them perform their
duties. Control, on the other hand, means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer ha[s] done in the performance of his
duties and to substitute the judgment of the former for that of the latter. 163
Josef Elvin Campos
Supervisory power, when contrasted with control, is the power of mere oversight over an
inferior body; it does not include any restraining authority over such body. 164 It does not
allow the supervisor to annul the acts of the subordinate. 165 Here, what the DOE seeks to do
is to set aside an ordinance enacted by local officials, a power that not even its principal, the
President, has. This is because:
Under our present system of government, executive power is vested in the
President. The members of the Cabinet and other executive officials are merely alter
egos. As such, they are subject to the power of control of the President, at whose will
and behest they can be removed from office; or their actions and decisions changed,
suspended or reversed. In contrast, the heads of political subdivisions are elected by
the people. Their sovereign powers emanate from the electorate, to whom they are
directly accountable. By constitutional fiat, they are subject to the President’s
supervision only, not control, so long as their acts are exercised within the sphere of
their legitimate powers. By the same token, the President may not withhold or alter
any authority or power given them by the Constitution and the law. 166
Thus, the President and his or her alter egos, the department heads, cannot interfere with
the activities of local governments, so long as they act within the scope of their authority.
Accordingly, the DOE cannot substitute its own discretion for the discretion exercised by
the sanggunian of the City of Manila. In local affairs, the wisdom of local officials must
prevail as long as they are acting within the parameters of the Constitution and the law. 167
Ordinance No. 8027 Is Not Invalid For Failure To Comply With RA 7924 And EO 72
The oil companies argue that zoning ordinances of LGUs are required to be submitted to
the Metropolitan Manila Development Authority (MMDA) for review and if found to be in
compliance with its metropolitan physical framework plan and regulations, it shall endorse
the same to the Housing and Land Use Regulatory Board (HLURB). Their basis is Section 3
(e) of RA 7924:168
SECTION 3. Scope of MMDA Services. ― Metro-wide services under the
jurisdiction of the MMDA are those services which have metro-wide impact and
transcend local political boundaries or entail huge expenditures such that it would not
be viable for said services to be provided by the individual [LGUs] comprising
Metropolitan Manila. These services shall include:
xxx xxx xxx
(g) Urban renewal, zoning, and land use planning, and shelter services which
include the formulation, adoption and implementation of policies, standards, rules
and regulations, programs and projects to rationalize and optimize urban land use
and provide direction to urban growth and expansion, the rehabilitation and
development of slum and blighted areas, the development of shelter and housing
facilities and the provision of necessary social services thereof. (Emphasis supplied)
Reference was also made to Section 15 of its implementing rules:
Section 15. Linkages with HUDCC, HLURB, NHA, LGUs and Other National
Government Agencies Concerned on Urban Renewal, Zoning and Land Use
Planning and Shelter Services. Within the context of the National Housing and Urban
Development Framework, and pursuant to the national standards, guidelines and
regulations formulated by the Housing and Land Use Regulatory Board [HLURB] on
land use planning and zoning, the [MMDA] shall prepare a metropolitan physical
framework plan and regulations which shall complement and translate the socio-
economic development plan for Metro Manila into physical or spatial terms, and
provide the basis for the preparation, review, integration and implementation of local
land use plans and zoning, ordinance of cities and municipalities in the area.
Said framework plan and regulations shall contain, among others, planning and
zoning policies and procedures that shall be observed by local government units in
the preparation of their own plans and ordinances pursuant to Section 447 and 458
of RA 7160, as well as the identification of sites and projects that are considered to
be of national or metropolitan significance.
Cities and municipalities shall prepare their respective land use plans and
zoning ordinances and submit the same for review and integration by the
[MMDA] and indorsement to HLURB in accordance with Executive Order No.
72 and other pertinent laws.
In the preparation of a Metropolitan Manila physical framework plan and regulations,
the [MMDA] shall coordinate with the Housing and Urban Development Coordinating
Council, HLURB, the National Housing Authority, Intramuros Administration, and all
other agencies of the national government which are concerned with land use and
zoning, urban renewal and shelter services. (Emphasis supplied)
Josef Elvin Campos
They also claim that EO 72169 provides that zoning ordinances of cities and municipalities of
Metro Manila are subject to review by the HLURB to ensure compliance with national
standards and guidelines. They cite Section 1, paragraphs I, (e), (f) and (g):
SECTION 1. Plan formulation or updating. ―
xxx xxx xxx
(g) Cities and municipalities of Metropolitan Manila shall continue to formulate
or update their respective comprehensive land use plans, in accordance
with the land use planning and zoning standards and guidelines prescribed by
the HLURB pursuant to EO 392, S. of 1990, and other pertinent national
policies.
xxx xxx xxx
(e) Pursuant to LOI 729, S. of 1978, EO 648, S. of 1981, and RA 7279,
the comprehensive land use plans of provinces, highly urbanized cities and
independent component cities shall be reviewed and ratified by the HLURB to
ensure compliance with national standards and guidelines.
(f) Pursuant to EO 392, S. of 1999, the comprehensive land use plans of cities and
municipalities of Metropolitan Manila shall be reviewed by the HLURB to ensure
compliance with national standards and guidelines.
(g) Said review shall be completed within three (3) months upon receipt thereof
otherwise, the same shall be deemed consistent with law, and, therefore, valid.
(Emphasis supplied)
They argue that because Ordinance No. 8027 did not go through this review process, it is
invalid.
The argument is flawed.
RA 7942 does not give MMDA the authority to review land use plans and zoning ordinances
of cities and municipalities. This was only found in its implementing rules which made a
reference to EO 72. EO 72 expressly refers to comprehensive land use plans (CLUPs) only.
Ordinance No. 8027 is admittedly not a CLUP nor intended to be one. Instead, it is a very
specific ordinance which reclassified the land use of a defined area in order to prevent the
massive effects of a possible terrorist attack. It is Ordinance No. 8119 which was explicitly
formulated as the "Manila [CLUP] and Zoning Ordinance of 2006." CLUPs are the
ordinances which should be submitted to the MMDA for integration in its metropolitan
physical framework plan and approved by the HLURB to ensure that they conform with
national guidelines and policies.
Moreover, even assuming that the MMDA review and HLURB ratification are necessary, the
oil companies did not present any evidence to show that these were not complied with. In
accordance with the presumption of validity in favor of an ordinance, its constitutionality or
legality should be upheld in the absence of proof showing that the procedure prescribed by
law was not observed. The burden of proof is on the oil companies which already had notice
that this Court was inclined to dispose of all the issues in this case. Yet aside from their
bare assertion, they did not present any certification from the MMDA or the HLURB nor did
they append these to their pleadings. Clearly, they failed to rebut the presumption of validity
of Ordinance No. 8027.170
Conclusion
Essentially, the oil companies are fighting for their right to property. They allege that they
stand to lose billions of pesos if forced to relocate. However, based on the hierarchy of
constitutionally protected rights, the right to life enjoys precedence over the right to
property.171 The reason is obvious: life is irreplaceable, property is not. When the state or
LGU’s exercise of police power clashes with a few individuals’ right to property, the former
should prevail.172
Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027.
Without a doubt, there are no impediments to its enforcement and implementation. Any
delay is unfair to the inhabitants of the City of Manila and its leaders who have categorically
expressed their desire for the relocation of the terminals. Their power to chart and control
their own destiny and preserve their lives and safety should not be curtailed by the
intervenors’ warnings of doomsday scenarios and threats of economic disorder if the
ordinance is enforced.
Secondary to the legal reasons supporting the immediate implementation of Ordinance No.
8027 are the policy considerations which drove Manila’s government to come up with such
a measure:
... [The] oil companies still were not able to allay the apprehensions of the city
regarding the security threat in the area in general. No specific action plan or security
measures were presented that would prevent a possible large-scale terrorist or
Josef Elvin Campos
malicious attack especially an attack aimed at Malacañang. The measures that were
installed were more directed towards their internal security and did not include the
prevention of an external attack even on a bilateral level of cooperation between
these companies and the police and military.
xxx xxx xxx
It is not enough for the city government to be told by these oil companies that they
have the most sophisticated fire-fighting equipments and have invested millions of
pesos for these equipments. The city government wants to be assured that its
residents are safe at any time from these installations, and in the three public
hearings and in their position papers, not one statement has been said that indeed
the absolute safety of the residents from the hazards posed by these installations is
assured.173
We are also putting an end to the oil companies’ determination to prolong their stay in
Pandacan despite the objections of Manila’s residents. As early as October 2001, the oil
companies signed a MOA with the DOE obliging themselves to:
... undertake a comprehensive and comparative study ... [which] shall include the
preparation of a Master Plan, whose aim is to determine the scope and timing of the
feasible location of the Pandacan oil terminals and all associated facilities and
infrastructure including government support essential for the relocation such as the
necessary transportation infrastructure, land and right of way acquisition,
resettlement of displaced residents and environmental and social acceptability which
shall be based on mutual benefit of the Parties and the public. 174
Now that they are being compelled to discontinue their operations in the Pandacan
Terminals, they cannot feign unreadiness considering that they had years to prepare for this
eventuality.
Just the same, this Court is not about to provoke a crisis by ordering the immediate
relocation of the Pandacan Terminals out of its present site. The enforcement of a decision
of this Court, specially one with far-reaching consequences, should always be within the
bounds of reason, in accordance with a comprehensive and well-coordinated plan, and
within a time-frame that complies with the letter and spirit of our resolution. To this end, the
oil companies have no choice but to obey the law.
A Warning To Petitioners’ Counsel
We draw the attention of the parties to a matter of grave concern to the legal profession.
Petitioners and their counsel, Atty. Samson Alcantara, submitted a four-page memorandum
that clearly contained either substance nor research. It is absolutely insulting to this Court.
We have always tended towards judicial leniency, temperance and compassion to those
who suffer from a wrong perception of what the majesty of the law means. But for a member
of the bar, an officer of the court, to file in this Court a memorandum of such unacceptable
quality is an entirely different matter.
It is indicative less of a personal shortcoming or contempt of this Court and more of a
lawyer’s sorry descent from a high sense of duty and responsibility. As a member of the bar
and as an officer of the court, a lawyer ought to be keenly aware that the chief safeguard of
the body politic is respect for the law and its magistrates.
There is nothing more effective than the written word by which counsel can persuade this
Court of the righteousness of his cause. For if truth were self-evident, a memorandum
would be completely unnecessary and superfluous.
The inability of counsel to prepare a memorandum worthy of this Court’s consideration is
an ejemplo malo to the legal profession as it betrays no genuine interest in the cause he
claims to espouse. Or did counsel think he can earn his moment of glory without the hard
work and dedication called for by his petition?
A Final Word
On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of gasoline and
14,000 liters of diesel exploded in the middle of the street a short distance from the exit gate
of the Pandacan Terminals, causing death, extensive damage and a frightening
conflagration in the vicinity of the incident. Need we say anthing about what will happen if it
is the estimated 162 to 211 million liters 175 of petroleum products in the terminal complex
which blow up?
WHEREFORE, the motions for leave to intervene of Chevron Philippines Inc., Petron
Corporation and Pilipinas Shell Petroleum Corporation, and the Republic of the Philippines,
represented by the Department of Energy, are hereby GRANTED. Their respective motions
for reconsideration are hereby DENIED. The Regional Trial Court, Manila, Branch 39
is ORDERED to DISMISS the consolidated cases of Civil Case No. 03-106377 and Civil
Case No. 03-106380.
Josef Elvin Campos
We reiterate our order to respondent Mayor of the City of Manila to enforce Ordinance No.
8027. In coordination with the appropriate agencies and other parties involved, respondent
Mayor is hereby ordered to oversee the relocation and transfer of the Pandacan Terminals
out of its present site.
To ensure the orderly transfer, movement and relocation of assets and personnel, the
intervenors Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum
Corporation shall, within a non-extendible period of ninety (90) days, submit to the Regional
Trial Court of Manila, Branch 39, the comprehensive plan and relocation schedule which
have allegedly been prepared. The presiding judge of Manila RTC, Branch 39 will monitor
the strict enforcement of this resolution.
Atty. Samson Alcantara is hereby ordered to explain within five (5) days from notice why he
should not be disciplined for his refusal, or inability, to file a memorandum worthy of the
consideration of this Court.
Treble costs against petitioners’ counsel, Atty. Samson Alcantara.
SO ORDERED.
(b) Local initiative referendum

7. Authority over Police Units
Section 6, Article XVI of the 1987 Constitution
Section 6. The State shall establish and maintain one police force, which shall
be national in scope and civilian in character, to be administered and
controlled by a national police commission. The authority of local executives
over the police units in their jurisdiction shall be provided by law.
C. Corporate Powers
1. To have continuous succession in its corporate name
2. To sue and be sued
3. To have and use a corporate seal
4. To acquire and convey real or personal property
5. To enter into contracts
(a) Requisites
(b) Ultra vires contracts
III. Municipal Liability
A. Section 24, RA No. 7160

SECTION 24. Liability for Damages. – Local government units and their
officials are not exempt from liability for death or injury to persons or damage
to property.
B. Liability for violation of law, contract, tort
C. Doctrine of implied municipal liability
IV. Local Officials
A. Provisions applicable to Elective and Appointive Local Officials

1. Prohibited Business and Pecuniary Interest
2. Practice of Profession
Cases:
Republic of the Philippines v. Rambuyong (G.R. No. 167810, 04 October
2010)
646 Phil. 373
DEL CASTILLO, J.:

This petition for review assails the May 20, 2004 Decision [1] and April 13, 2005
Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 72800, which dismissed the
petition before it and denied reconsideration, respectively.
Factual Antecedents
Alfredo Y. Chu (Chu) filed a case for collection of a sum of money and/or damages against
the National Power Corporation (NPC) docketed as Civil Case No. 1-197 which was raffled
Josef Elvin Campos
to the Regional Trial Court (RTC) of Ipil, Zamboanga Sibugay, Branch 24. Appearing as
counsel for Chu is Atty. Richard B. Rambuyong (Atty. Rambuyong) who was then the
incumbent Vice-Mayor of Ipil, Zamboanga Sibugay.
Thereafter, NPC filed a Motion for Inhibition [3] of Atty. Rambuyong arguing that under
Section 90 (b), (1) of Republic Act (RA) No. 7160, otherwise known as the Local
Government Code, sanggunian members are prohibited "to appear as counsel before any
court wherein x x x any office, agency or instrumentality of the government is the adverse
party." NPC contended that being a government-owned or controlled corporation, it is
embraced within the term "instrumentality."
Ruling of the Regional Trial Court
In an Order[4] dated January 4, 2002, the RTC ruled that government-owned or controlled
corporations are expressly excluded from Section 90 (b), (1) of the Local Government
Code. Citing other provisions of the Local Government Code wherein the phrase "including
government-owned or controlled corporations" is explicitly included, the trial court held that
if it was the intention of the framers of RA 7160 to impose obligations or give rights and
privileges to local government units, agencies, instrumentalities or corporate entities, then
they would have explicitly stated so. The RTC further held that "to insistently maintain that
'government-owned or controlled corporations' are included in the signification of 'agency
and instrumentality of the government' x x x would be leaving behind what is apparent in
favor of opening the door to the realm of presumption, baseless conjecture and even
absurdity."[5]
The dispositive portion of the Order reads:
WHEREFORE, upon the foregoing disquisition, the defendant's motion is DENIED due
course, and this Court declares:
1. Sec. 90 of R.A. 7160 does not include government-owned or controlled corporations
as among the political units against which lawyer members of the Sanggunian
cannot appear as counsel of the adverse party;
2.
3. That Atty. Richard B. Rambuyong, who is the incumbent Vice-Mayor of the
Municipality of Ipil, Zamboanga Sibugay, is not disqualified to continue acting as
counsel for the plaintiff in this case.
SO ORDERED.[6]
Petitioner filed a motion for reconsideration but it was denied. [7]
Hence, petitioner filed a petition for certiorari with the CA alleging grave abuse of discretion
on the part of the trial judge in ruling that the statutory prohibition pertaining to the private
practice of law by sanggunian members does not apply to cases where the adverse party is
a government-owned or controlled corporation.
Ruling of the Court of Appeals
On May 20, 2004, the CA dismissed the petition for lack of merit. The CA pointed out that
for certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power. It
held that there was no showing that the trial judge exercised his power of judgment
capriciously, arbitrarily and whimsically. Neither did it find proof that the trial judge, in
making the rulings, was motivated by passion or personal hostility towards the petitioner.
It ruled that if ever there has been an erroneous interpretation of the law, the same may be
attributed to a mere error of judgment which is definitely not the same as "grave abuse of
discretion." The dispositive portion of the Decision states:
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED.
SO ORDERED.[8]
The motion for reconsideration of NPC was denied. Hence, the present petition.
Issues
Petitioner raises the following arguments:
I
BOTH THE LOCAL GOVERNMENT CODE AND THE 1987 ADMINISTRATIVE [CODE]
ESSENTIALLY REQUIRE ATTY. RAMBUYONG TO INHIBIT HIMSELF FROM ACTING AS
COUNSEL AGAINST NPC IN THE PROCEEDINGS BELOW.
II
NPC IS INCLUDED IN THE TERM "INSTRUMENTALITY" OF GOVERNMENT.
III
THE PROHIBITION IN SECTION 90(b), (1) OF RA 7160 INTENDS TO PREVENT PUBLIC
OFFICIALS FROM REPRESENTING INTEREST ADVERSE TO THE GOVERNMENT.
IV
BACANI CASE IS NO LONGER THE PREVAILING JURISPRUDENCE ON THE REAL
MEANING OF GOVERNMENT INSTRUMENTALITIES.
Josef Elvin Campos
V
ATTY. RICHARD RAMBUYONG IS THE REAL-PARTY-IN-INTEREST IN THE SUBJECT
PETITION.[9]
In the main the issue is whether NPC is an instrumentality of government such that Atty.
Rambuyong, as a sanggunian member, should not appear as counsel against it.
Petitioner's Arguments
Petitioner contends that the trial court refused to apply the law, specifically Section 90 (b),
(1) of RA 7160, which clearly states that lawyer-sanggunian members cannot appear as
counsel in any case where the adverse party is a local government unit, office, agency or
instrumentality. It argues that courts are not authorized to distinguish where the law makes
no distinction.
Petitioner alleges that the RTC gravely abused its discretion when it failed to recognize that
the 1987 Administrative Code and the Local Government Code are in pari materia in
defining the terms used in the latter, such as "office, agency or instrumentality." It argues
that the RTC acted beyond the scope of its jurisdiction when it constricted the definition of
"instrumentality" in Section 90 (b), (1) of RA 7160 to exclude government-owned and
controlled corporations.
Petitioner argues that NPC is an instrumentality of government and that there is no cogent
reason to exclude government-owned and controlled corporations from the operation of
Section 90 (b), (1) of RA 7160.
Finally, petitioner claims that the government's challenge against Atty. Rambuyong's
appearance is directed against him alone to the exclusion of his client whose right to
prosecute his claim as party litigant is beyond question.
Respondent's Arguments
On the other hand, respondent contends that the party who would be benefited or injured by
the compulsory inhibition of plaintiffs counsel is the plaintiff in Civil Case No. 1-197. Thus, ,
he insists that the plaintiff is the real party in interest and his (Atty. Rambuyong) inclusion as
respondent in the present petition is erroneous.
Our Ruling
The petition has merit.
Instrumentality of the Government
The provisions of law relevant to the present case state:
Sec. 90.[10] Practice of Profession. (a) All governors, city and municipal mayors are
prohibited from practicing their profession or engaging in any occupation, other than the
exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any occupation, or
teach in schools except during session hours:
Provided, That sanggunian members who are also members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government unit or
any office, agency, or instrumentality of the government is the adverse party;
xxx xxx xxx
Sec. 5.[11] Rules of Interpretation. In the interpretation of the provisions of this Code, the
following rules shall apply:
xxx xxx xxx
(e) In the resolution of controversies arising under this Code where no legal provision or
jurisprudence applies, resort may be had to the customs and traditions in the place where
the controversies take place. (Emphasis supplied.)
Sec. 2.[12] General Terms Defined. Unless the specific words of the text, or the context as a
whole, or a particular statute, shall require a different meaning:
xxx xxx xxx
(4) "Agency of the Government" refers to any of the various units of the Government,
including a department, bureau, office, instrumentality, or government-owned or controlled
corporations, or a local government or a distinct unit therein.
xxx xxx xxx
(10) Instrumentality refers to any agency of the National Government, not integrated within
the department framework, vested with special functions or jurisdiction by law, endowed
with some if not all corporate powers, administering special funds, and enjoying operational
autonomy, usually through a charter. This term includes regulatory agencies, chartered
institutions and government-owned or controlled corporations. (Emphasis supplied.)
In Aparri v. Court of Appeals,,13 the Court instructs:
It is the rule in statutory construction that if the words and phrases of a statute are not
obscure or ambiguous, its meaning and the intention of the legislature must be determined
from the language employed, and, where there is no ambiguity in the words, there is no
Josef Elvin Campos
room for construction. The courts may not speculate as to the probable intent of the
legislature apart from the words. The reason for the rule is that the legislature must be
presumed to know the meaning of words, to have used words advisedly and to have
expressed its intent by use of such words as are found in the statute.
Section 2 of the Administrative Code of 1987 is clear and unambiguous. It categorically
provides that the term "instrumentality" includes government-owned or controlled
corporations. Hence there is no room for construction. All that has to be done is to apply the
law as called for by the circumstances of the case. It is not disputed that the NPC is a
government-owned or controlled corporation. Therefore following Section 2 of the
Administrative Code of 1987, the NPC is clearly an instrumentality of the government.
It is also significant to point out that in Maceda v. Macaraig, Jr.[14] the Court stated that "[t]he
NPC is a government instrumentality with the enormous task of undertaking development of
hydroelectric generation of power and production of electricity from other sources, as well
as the transmission of electric power on a nationwide basis, to improve the quality of life of
the people pursuant to the State policy embodied in Section [9], Article II of the 1987
Constitution."
Given the categorical words of both the law and jurisprudence, to still go to extra-ordinary
lengths to interpret the intention of the lawmakers and come out with the construction that a
government-owned or controlled corporation like the NPC is not included within the term
"instrumentality of the government" is grave abuse of discretion.
"By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction." [15] "Grave abuse of discretion is an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation
of law as when the judgment rendered is not based on law and evidence but on caprice,
whim and despotism."[16]
The strained and contrary interpretation of clearly worded provisions of law, which therefore
should be merely applied and not interpreted, is an earmark of despotism and grave abuse
of discretion.
Finally, Section 446 of the Local Government Code provides that "[t]he sanggnniang bayan,
the legislative body of the municipality, shall be composed of the municipal vice mayor as
the presiding officer x x x." Thus, pursuant to Sec. 90 (b), (1) of the Local Government
Code, Atty. Rambuyong, as sanggunian member, cannot appear as counsel of a party
adverse to the NPC, which is an instrumentality of government.
WHEREFORE, the petition is GRANTED. The May 20, 2004 Decision and April 13,2005
Resolution of the Court of Appeals in CA-G.R. SP No. 72800 are REVERSED and SET
ASIDE. Atty. Richard B. Rambuyong is disqualified from appearing in Civil Case No. 1-197.
SO ORDERED.
Corona, C.J. (Chairperson), Velasco, Jr., Leonardo-de Castro, and Perez, JJ., concur.
Catu v. Rellosa (A.C. No. 5738, 19 February 2008)

A.C. No. 5738 February 19, 2008
WILFREDO M. CATU, complainant,
vs.
ATTY. VICENTE G. RELLOSA, respondent.
RESOLUTION
CORONA, J.:
Complainant Wilfredo M. Catu is a co-owner of a lot 1 and the building erected thereon
located at 959 San Andres Street, Malate, Manila. His mother and brother, Regina Catu and
Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu 2 and Antonio Pastor3 of
one of the units in the building. The latter ignored demands for them to vacate the premises.
Thus, a complaint was initiated against them in the Lupong Tagapamayapa of Barangay
723, Zone 79 of the 5th District of Manila4 where the parties reside.
Respondent, as punong barangay of Barangay 723, summoned the parties to conciliation
meetings.5 When the parties failed to arrive at an amicable settlement, respondent issued a
certification for the filing of the appropriate action in court.
Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor
in the Metropolitan Trial Court of Manila, Branch 11. Respondent entered his appearance as
counsel for the defendants in that case. Because of this, complainant filed the instant
administrative complaint,6 claiming that respondent committed an act of impropriety as a
lawyer and as a public officer when he stood as counsel for the defendants despite the fact
that he presided over the conciliation proceedings between the litigants as punong
barangay.
Josef Elvin Campos
In his defense, respondent claimed that one of his duties as punong barangay was to hear
complaints referred to the barangay's Lupong Tagapamayapa. As such, he heard the
complaint of Regina and Antonio against Elizabeth and Pastor. As head of the Lupon, he
performed his task with utmost objectivity, without bias or partiality towards any of the
parties. The parties, however, were not able to amicably settle their dispute and Regina and
Antonio filed the ejectment case. It was then that Elizabeth sought his legal assistance. He
acceded to her request. He handled her case for free because she was financially
distressed and he wanted to prevent the commission of a patent injustice against her.
The complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation. As there was no factual issue to thresh out, the IBP's
Commission on Bar Discipline (CBD) required the parties to submit their respective position
papers. After evaluating the contentions of the parties, the IBP-CBD found sufficient ground
to discipline respondent.7
According to the IBP-CBD, respondent admitted that, as punong barangay, he presided
over the conciliation proceedings and heard the complaint of Regina and Antonio against
Elizabeth and Pastor. Subsequently, however, he represented Elizabeth and Pastor in the
ejectment case filed against them by Regina and Antonio. In the course thereof, he
prepared and signed pleadings including the answer with counterclaim, pre-trial brief,
position paper and notice of appeal. By so doing, respondent violated Rule 6.03 of the Code
of Professional Responsibility:
Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement
or employment in connection with any matter in which he intervened while in said
service.
Furthermore, as an elective official, respondent contravened the prohibition under Section
7(b)(2) of RA 6713:8
SEC. 7. Prohibited Acts and Transactions. - In addition to acts and omissions of
public officials and employees now prescribed in the Constitution and existing laws,
the following shall constitute prohibited acts and transactions of any public official
ands employee and are hereby declared to be unlawful:
xxx xxx xxx
(b) Outside employment and other activities related thereto. - Public officials and
employees during their incumbency shall not:
xxx xxx xxx
(2) Engage in the private practice of profession unless authorized by the
Constitution or law, provided that such practice will not conflict or tend to
conflict with their official functions; xxx (emphasis supplied)
According to the IBP-CBD, respondent's violation of this prohibition constituted a breach of
Canon 1 of the Code of Professional Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS
OF THE LAND, PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.
(emphasis supplied)
For these infractions, the IBP-CBD recommended the respondent's suspension from the
practice of law for one month with a stern warning that the commission of the same or
similar act will be dealt with more severely. 9 This was adopted and approved by the IBP
Board of Governors.10
We modify the foregoing findings regarding the transgression of respondent as well as the
recommendation on the imposable penalty.
Rule 6.03 of the Code of Professional Responsibility Applies Only to Former
Government Lawyers
Respondent cannot be found liable for violation of Rule 6.03 of the Code of Professional
Responsibility. As worded, that Rule applies only to a lawyer who has left government
service and in connection "with any matter in which he intervened while in said service."
In PCGG v. Sandiganbayan,11 we ruled that Rule 6.03 prohibits former government
lawyers from accepting "engagement or employment in connection with any matter in
which [they] had intervened while in said service."
Respondent was an incumbent punong barangay at the time he committed the act
complained of. Therefore, he was not covered by that provision.
Section 90 of RA 7160, Not Section 7(b)(2) of RA 6713, Governs The Practice of
Profession of Elective Local Government Officials
Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their
incumbency, from engaging in the private practice of their profession "unless authorized by
the Constitution or law, provided that such practice will not conflict or tend to conflict with
Josef Elvin Campos
their official functions." This is the general law which applies to all public officials and
employees.
For elective local government officials, Section 90 of RA 7160 12 governs:
SEC. 90. Practice of Profession. - (a) All governors, city and municipal mayors are
prohibited from practicing their profession or engaging in any occupation other than
the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any occupation,
or teach in schools except during session hours: Provided,
That sanggunian members who are members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local
government unit or any office, agency, or instrumentality of the government is
the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or employee of
the national or local government is accused of an offense committed in
relation to his office;
(3) Collect any fee for their appearance in administrative proceedings
involving the local government unit of which he is an official; and
(4) Use property and personnel of the Government except when
the sanggunian member concerned is defending the interest of the
Government.
(c) Doctors of medicine may practice their profession even during official hours of
work only on occasions of emergency: Provided, That the officials concerned do not
derive monetary compensation therefrom.
This is a special provision that applies specifically to the practice of profession by elective
local officials. As a special law with a definite scope (that is, the practice of profession by
elective local officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general
law on engaging in the private practice of profession by public officials and employees. Lex
specialibus derogat generalibus.13
Under RA 7160, elective local officials of provinces, cities, municipalities and barangays are
the following: the governor, the vice governor and members of the sangguniang
panlalawigan for provinces; the city mayor, the city vice mayor and the members of
the sangguniang panlungsod for cities; the municipal mayor, the municipal vice mayor and
the members of the sangguniang bayan for municipalities and the punong barangay, the
members of the sangguniang barangay and the members of the sangguniang kabataan for
barangays.
Of these elective local officials, governors, city mayors and municipal mayors are prohibited
from practicing their profession or engaging in any occupation other than the exercise of
their functions as local chief executives. This is because they are required to render full time
service. They should therefore devote all their time and attention to the performance of their
official duties.
On the other hand, members of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayan may practice their professions, engage in any
occupation, or teach in schools except during session hours. In other words, they may
practice their professions, engage in any occupation, or teach in schools outside their
session hours. Unlike governors, city mayors and municipal mayors, members of
the sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayan are
required to hold regular sessions only at least once a week. 14 Since the law itself grants
them the authority to practice their professions, engage in any occupation or teach in
schools outside session hours, there is no longer any need for them to secure prior
permission or authorization from any other person or office for any of these purposes.
While, as already discussed, certain local elective officials (like governors, mayors,
provincial board members and councilors) are expressly subjected to a total or partial
proscription to practice their profession or engage in any occupation, no such interdiction is
made on the punong barangay and the members of the sangguniang barangay. Expressio
unius est exclusio alterius.15 Since they are excluded from any prohibition, the presumption
is that they are allowed to practice their profession. And this stands to reason because they
are not mandated to serve full time. In fact, the sangguniang barangay is supposed to hold
regular sessions only twice a month.16
Accordingly, as punong barangay, respondent was not forbidden to practice his profession.
However, he should have procured prior permission or authorization from the head of his
Department, as required by civil service regulations.
A Lawyer In Government Service Who Is Not Prohibited To Practice Law Must Secure
Prior Authority From The Head Of His Department
Josef Elvin Campos
A civil service officer or employee whose responsibilities do not require his time to be fully at
the disposal of the government can engage in the private practice of law only with the
written permission of the head of the department concerned. 17 Section 12, Rule XVIII of the
Revised Civil Service Rules provides:
Sec. 12. No officer or employee shall engage directly in any private business,
vocation, or profession or be connected with any commercial, credit, agricultural, or
industrial undertaking without a written permission from the head of the
Department: Provided, That this prohibition will be absolute in the case of those
officers and employees whose duties and responsibilities require that their entire
time be at the disposal of the Government; Provided, further, That if an employee is
granted permission to engage in outside activities, time so devoted outside of office
hours should be fixed by the agency to the end that it will not impair in any way the
efficiency of the officer or employee: And provided, finally, that no permission is
necessary in the case of investments, made by an officer or employee, which do not
involve real or apparent conflict between his private interests and public duties, or in
any way influence him in the discharge of his duties, and he shall not take part in the
management of the enterprise or become an officer of the board of directors.
(emphasis supplied)
As punong barangay, respondent should have therefore obtained the prior written
permission of the Secretary of Interior and Local Government before he entered his
appearance as counsel for Elizabeth and Pastor. This he failed to do.
The failure of respondent to comply with Section 12, Rule XVIII of the Revised Civil Service
Rules constitutes a violation of his oath as a lawyer: to obey the laws. Lawyers are servants
of the law, vires legis, men of the law. Their paramount duty to society is to obey the law
and promote respect for it. To underscore the primacy and importance of this duty, it is
enshrined as the first canon of the Code of Professional Responsibility.
In acting as counsel for a party without first securing the required written permission,
respondent not only engaged in the unauthorized practice of law but also violated civil
service rules which is a breach of Rule 1.01 of the Code of Professional Responsibility:
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. (emphasis supplied)
For not living up to his oath as well as for not complying with the exacting ethical standards
of the legal profession, respondent failed to comply with Canon 7 of the Code of
Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND
THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES
OF THE INTEGRATED BAR. (emphasis supplied)
Indeed, a lawyer who disobeys the law disrespects it. In so doing, he disregards legal ethics
and disgraces the dignity of the legal profession.
Public confidence in the law and in lawyers may be eroded by the irresponsible and
improper conduct of a member of the bar.18 Every lawyer should act and comport himself in
a manner that promotes public confidence in the integrity of the legal profession. 19
A member of the bar may be disbarred or suspended from his office as an attorney for
violation of the lawyer's oath20 and/or for breach of the ethics of the legal profession as
embodied in the Code of Professional Responsibility.
WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby found GUILTY of
professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and Rule
1.01 of the Code of Professional Responsibility. He is therefore SUSPENDED from the
practice of law for a period of six months effective from his receipt of this resolution. He is
sternly WARNED that any repetition of similar acts shall be dealt with more severely.
Respondent is strongly advised to look up and take to heart the meaning of the
word delicadeza.
Let a copy of this resolution be furnished the Office of the Bar Confidant and entered into
the records of respondent Atty. Vicente G. Rellosa. The Office of the Court Administrator
shall furnish copies to all the courts of the land for their information and guidance.
SO ORDERED.
3. Prohibition Against Appointment

Case: Flores v. Drilon (G.R. No. 104732, 22 June 1993)
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A.
JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner,
Josef Elvin Campos
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J.
GORDON, respondents.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for
petitioners.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases
Conversion and Development Act of 1992," under which respondent Mayor Richard J.
Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic
Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for
prohibition, preliminary injunction and temporary restraining order "to prevent useless and
unnecessary expenditures of public funds by way of salaries and other operational
expenses attached to the office . . . ." 2 Paragraph (d) reads —
(d) Chairman administrator — The President shall appoint a professional
manager as administrator of the Subic Authority with a compensation to be
determined by the Board subject to the approval of the Secretary of Budget,
who shall be the ex oficio chairman of the Board and who shall serve as the
chief executive officer of the Subic Authority: Provided, however, That for the
first year of its operations from the effectivity of this Act, the mayor of the City
of Olongapo shall be appointed as the chairman and chief executive officer of
the Subic Authority (emphasis supplied).
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic,
Zambales, and officers and members of the Filipino Civilian Employees Association in U.S.
Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above
quoted in italics infringes on the following constitutional and statutory provisions: (a) Sec. 7,
first par., Art. IX-B, of the Constitution, which states that "[n]o elective official shall be
eligible for appointment or designation in any capacity to any public officer or position
during his tenure,"3 because the City Mayor of Olongapo City is an elective official and the
subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that
"[t]he President shall . . . . appoint all other officers of the Government whose appointments
are not otherwise provided for by law, and those whom he may be authorized by law to
appoint",4 since it was Congress through the questioned proviso and not the President who
appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the Omnibus
Election Code, which says:
Sec. 261. Prohibited Acts. — The following shall be guilty of an election
offense: . . . (g) Appointment of new employees, creation of new position,
promotion, or giving salary increases. — During the period of forty-five days
before a regular election and thirty days before a special election, (1) any
head, official or appointing officer of a government office, agency or
instrumentality, whether national or local, including government-owned or
controlled corporations, who appoints or hires any new employee, whether
provisional, temporary or casual, or creates and fills any new position, except
upon prior authority of the Commission. The Commission shall not grant the
authority sought unless it is satisfied that the position to be filled is essential
to the proper functioning of the office or agency concerned, and that the
position shall not be filled in a manner that may influence the election. As an
exception to the foregoing provisions, a new employee may be appointed in
case of urgent need: Provided, however, That notice of the appointment shall
be given to the Commission within three days from the date of the
appointment. Any appointment or hiring in violation of this provision shall be
null and void. (2) Any government official who promotes, or gives any
increase of salary or remuneration or privilege to any government official or
employee, including those in government-owned or controlled
corporations . . . .
for the reason that the appointment of respondent Gordon to the subject posts made by
respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day period
prior to the 11 May 1992 Elections.
The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states,
"Provided, however, That for the first year of its operations from the effectivity of this Act,
the mayor of the City of Olongapo shall be appointed as the chairman and chief executive
officer of the Subic Authority," violates the constitutional proscription against appointment or
designation of elective officials to other government posts.
Josef Elvin Campos
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for appointment or designation in any
capacity to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position,
no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
The section expresses the policy against the concentration of several public positions in one
person, so that a public officer or employee may serve full-time with dedication and thus be
efficient in the delivery of public services. It is an affirmation that a public office is a full-time
job. Hence, a public officer or employee, like the head of an executive department
described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft
League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R.
No. 83815,6 ". . . . should be allowed to attend to his duties and responsibilities without the
distraction of other governmental duties or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions of responsibility,
which may result in haphazardness and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a
situation where a local elective official will work for his appointment in an executive position
in government, and thus neglect his constituents . . . ." 7
In the case before us, the subject proviso directs the President to appoint an elective
official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the
Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional
proscription seeks to prevent, it needs no stretching of the imagination to conclude that
the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that
the expertise of an elective official may be most beneficial to the higher interest of the body
politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a
local elective official to another post if so allowed by law or by the primary functions of his
office.8 But, the contention is fallacious. Section 94 of the LGC is not determinative of the
constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the
fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not
the issue here nor is that section sought to be declared unconstitutional, we need not rule
on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its
validity.
In any case, the view that an elective official may be appointed to another post if allowed by
law or by the primary functions of his office, ignores the clear-cut difference in the wording
of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices
by an appointive official when allowed by law or by the primary functions of his position, the
first paragraph appears to be more stringent by not providing any exception to the rule
against appointment or designation of an elective official to the government post, except as
are particularly recognized in the Constitution itself, e.g., the President as head of the
economic and planning agency;9 the Vice-President, who may be appointed Member of the
Cabinet; 10 and, a member of Congress who may be designated ex officio member of the
Judicial and Bar Council. 11
The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not
accidental when drawn, and not without reason. It was purposely sought by the drafters of
the Constitution as shown in their deliberation, thus —
MR. MONSOD. In other words, what then Commissioner is saying, Mr.
Presiding Officer, is that the prohibition is more strict with respect to elective
officials, because in the case of appointive officials, there may be a law that
will allow them to hold other positions.
MR. FOZ. Yes, I suggest we make that difference, because in the case of
appointive officials, there will be certain situations where the law should allow
them to hold some other positions. 12
The distinction being clear, the exemption allowed to appointive officials in the second
paragraph cannot be extended to elective officials who are governed by the first paragraph.
It is further argued that the SBMA posts are merely ex officio to the position of Mayor of
Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive
Secretary, 13 where we stated that the prohibition against the holding of any other office or
employment by the President, Vice-President, Members of the Cabinet, and their deputies
or assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does
Josef Elvin Campos
not comprehend additional duties and functions required by the primary functions of the
officials concerned, who are to perform them in an ex officio capacity as provided by law,
without receiving any additional compensation therefor.
This argument is apparently based on a wrong premise. Congress did not contemplate
making the subject SBMA posts as ex officio or automatically attached to the Office of the
Mayor of Olongapo City without need of appointment. The phrase "shall be appointed"
unquestionably shows the intent to make the SBMA posts appointive and not merely
adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to make the
subject positions ex officio, Congress would have, at least, avoided the word "appointed"
and, instead, "ex officio" would have been used. 14
Even in the Senate deliberations, the Senators were fully aware that subject proviso may
contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to
have the controversy resolved by the courts. Indeed, the Senators would not have been
concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex
officio.
Cognizant of the complication that may arise from the way the subject proviso was stated,
Senator Rene Saguisag remarked that "if the Conference Committee just said "the Mayor
shall be the Chairman" then that should foreclose the issue. It is a legislative choice." 15 The
Senator took a view that the constitutional proscription against appointment of elective
officials may have been sidestepped if Congress attached the SBMA posts to the Mayor of
Olongapo City instead of directing the President to appoint him to the post. Without passing
upon this view of Senator Saguisag, it suffices to state that Congress intended the posts to
be appointive, thus nibbling in the bud the argument that they are ex officio.
The analogy with the position of Chairman of the Metro Manila Authority made by
respondents cannot be applied to uphold the constitutionality of the
challenged proviso since it is not put in issue in the present case. In the same vein, the
argument that if no elective official may be appointed or designated to another post then
Sec. 8, Art. IX-B, of the Constitution allowing him to receive double compensation 16 would
be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the
subject proviso. In any case, the Vice-President for example, an elective official who may
be appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation
attached to the cabinet position if specifically authorized by law.
Petitioners also assail the legislative encroachment on the appointing authority of the
President. Section 13, par. (d), itself vests in the President the power to appoint the
Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no
choice under the law but to appoint the Mayor of Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a person, by the person or
persons having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he
selection or designation of a person, by the person or persons having authority therefor, to
fill an office or public function and discharge the duties of the same. 18 In his
treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by
the authority vested with the power, of an individual who is to exercise the functions of a
given office."
Considering that appointment calls for a selection, the appointing power necessarily
exercises a discretion. According to Woodbury, J., 20 "the choice of a person to fill an office
constitutes the essence of his appointment," 21 and Mr. Justice Malcolm adds that an
"[a]ppointment to office is intrinsically an executive act involving the exercise of
discretion." 22 In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court 23 we
held:
The power to appoint is, in essence, discretionary. The appointing power has
the right of choice which he may exercise freely according to his judgment,
deciding for himself who is best qualified among those who have the
necessary qualifications and eligibilities. It is a prerogative of the appointing
power . . . .
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an
exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment
papers to the appointee. In other words, the choice of the appointee is a fundamental
component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an officer, it
(Congress) cannot at the same time limit the choice of the President to only one candidate.
Once the power of appointment is conferred on the President, such conferment necessarily
carries the discretion of whom to appoint. Even on the pretext of prescribing the
Josef Elvin Campos
qualifications of the officer, Congress may not abuse such power as to divest the appointing
authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when
the qualifications prescribed by Congress can only be met by one individual, such
enactment effectively eliminates the discretion of the appointing power to choose and
constitutes an irregular restriction on the power of appointment. 24
In the case at bar, while Congress willed that the subject posts be filled with a presidential
appointee for the first year of its operations from the effectivity of R.A. 7227,
the proviso nevertheless limits the appointing authority to only one eligible, i.e., the
incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the
President is precluded from exercising his discretion to choose whom to appoint. Such
supposed power of appointment, sans the essential element of choice, is no power at all
and goes against the very nature itself of appointment.
While it may be viewed that the proviso merely sets the qualifications of the officer during
the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is
manifestly an abuse of congressional authority to prescribe qualifications where only one,
and no other, can qualify. Accordingly, while the conferment of the appointing power on the
President is a perfectly valid legislative act, the proviso limiting his choice to one is certainly
an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment remains all throughout his tenure
or during his incumbency, he may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be considered fit for appointment.
The deliberation in the Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the
word "term" with TENURE.
MR. FOZ. The effect of the proposed amendment is to make possible for one
to resign from his position.
MR. DAVIDE. Yes, we should allow that prerogative.
MR. FOZ. Resign from his position to accept an executive position.
MR. DAVIDE. Besides, it may turn out in a given case that because of, say,
incapacity, he may leave the service, but if he is prohibited from being
appointed within the term for which he was elected, we may be depriving the
government of the needed expertise of an individual. 25
Consequently, as long as he is an incumbent, an elective official remains ineligible for
appointment to another public office.
Where, as in the case of respondent Gordon, an incumbent elective official was,
notwithstanding his ineligibility, appointed to other government posts, he does not
automatically forfeit his elective office nor remove his ineligibility imposed by the
Constitution. On the contrary, since an incumbent elective official is not eligible to the
appointive position, his appointment or designation thereto cannot be valid in view of his
disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art.
VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may
hold any other office or employment in the Government . . . during his term without forfeiting
his seat . . . ." The difference between the two provisions is significant in the sense that
incumbent national legislators lose their elective posts only after they have been appointed
to another government office, while other incumbent elective officials must first resign their
posts before they can be appointed, thus running the risk of losing the elective post as well
as not being appointed to the other post. It is therefore clear that ineligibility is not directly
related with forfeiture of office. ". . . . The effect is quite different where it is
expressly provided by law that a person holding one office shall be ineligible to another.
Such a provision is held to incapacitate the incumbent of an office from accepting or holding
a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258;
McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to
the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40
ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where
the constitution, or statutes declare that persons holding one office shall be ineligible for
election or appointment to another office, either generally or of a certain kind, the prohibition
has been held to incapacitate the incumbent of the first office to hold the second so that any
attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d
258, 283 Ala 445)." 27
As incumbent elective official, respondent Gordon is ineligible for appointment to the
position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment
thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained.
He however remains Mayor of Olongapo City, and his acts as SBMA official are not
Josef Elvin Campos
necessarily null and void; he may be considered a de facto officer, "one whose acts, though
not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so
far as they involve the interest of the public and third persons, where the duties of the office
were exercised . . . . under color of a known election or appointment, void because the
officer was not eligible, or because there was a want of power in the electing or appointing
body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of
power or defect being unknown to the public . . . . [or] under color of an election, or
appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to
be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am.
Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28
Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and
other emoluments which may have been received by respondent Gordon pursuant to his
appointment may be retained by him.
The illegality of his appointment to the SBMA posts being now evident, other matters
affecting the legality of the questioned proviso as well as the appointment of said
respondent made pursuant thereto need no longer be discussed.
In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he
expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he
articulated —
. . . . (much) as we would like to have the present Mayor of Olongapo City as
the Chief Executive of this Authority that we are creating; (much) as I, myself,
would like to because I know the capacity, integrity, industry and dedication of
Mayor Gordon; (much) as we would like to give him this terrific, burdensome
and heavy responsibility, we cannot do it because of the constitutional
prohibition which is very clear. It says: "No elective official shall be appointed
or designated to another position in any capacity." 29
For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of
storms or a rock in the ocean amidst the raging of the waves." 30 One of the characteristics
of the Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change
dictated not by legitimate needs but only by passing fancies, temporary passions or
occasional infatuations of the people with ideas or personalities . . . . Such a Constitution is
not likely to be easily tampered with to suit political expediency, personal ambitions or ill-
advised agitation for change." 31
Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided,
however, That for the first year of its operations from the effectivity of this Act, the Mayor of
the City of Olongapo shall be appointed as the chairman and chief executive officer of the
Subic Authority," is declared unconstitutional; consequently, the appointment pursuant
thereto of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence
NULL and VOID.
However, all per diems, allowances and other emoluments received by respondent Gordon,
if any, as such Chairman and Chief Executive Officer may be retained by him, and all acts
otherwise legitimate done by him in the exercise of his authority as officer de facto of SBMA
are hereby UPHELD.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon,
Melo and Quiason, JJ., concur.
Padilla, J., is on leave.
Elective Local Officials
1. Qualifications/disqualifications
c
Jalosjos v. Comelec (G.R. No. 205033, 18 June 2013)
G.R. No. 205033 June 18, 2013
ROMEO G. JALOSJOS, Petitioner,
vs.
THE COMMISSION ON ELECTIONS, MARIA ISABELLE G. CLIMACO-SALAZAR, ROEL
B. NATIVIDAD, ARTURO N. ONRUBIA, AHMAD NARZAD K. SAMPANG, JOSE L.
LOBREGAT, ADELANTE ZAMBOANGA PARTY, AND ELBERT C.
ATILANO, Respondents.
DECISION
Josef Elvin Campos
PERLAS-BERNABE, J.:
Assailed in this petition for certiorari 1 file under Rule 64 in relation to Rule 65 of the Rules of
Court is the Commission on Elections' (COMELEC) En Bane Resolution No. 9613 2 dated
January 15, 2013, ordering the denial of due course to and/or cancellation of petitioner
Romeo G. Jalosjos' certificate of candidacy (CoC) as a mayoralty candidate for Zamboanga
City.
The Facts
On November 16, 2001, the Court promulgated its Decision in G.R. Nos. 132875-76,
entitled "People of the Philippines v. Romeo G. Jalosjos," convicting petitioner by final
judgment of two (2) counts of statutory rape and six (6) counts of acts of
lasciviousness.4 Consequently, he was sentenced to suffer the principal penalties of
reclusion perpetua and reclusion temporal 5 for each count, respectively, which carried the
accessory penalty of perpetual absolute disqualification pursuant to Article 41 of the
Revised Penal Code (RPC).6 On April 30, 2007, then President Gloria Macapagal Arroyo
issued an order commuting his prison term to sixteen (16) years, three (3) months and three
(3) days (Order of Commutation). After serving the same, he was issued a Certificate of
Discharge From Prison on March 18, 2009.7
On April 26, 2012,8 petitioner applied to register as a voter in Zamboanga City. However,
because of his previous conviction, his application was denied by the Acting City Election
Officer of the Election Registration Board (ERB), prompting him to file a Petition for
Inclusion in the Permanent List of Voters (Petition for Inclusion) before the Municipal Trial
Court in Cities of Zamboanga City, Branch 1 (MTCC). 9 Pending resolution of the same, he
filed a CoC10 on October 5, 2012, seeking to run as mayor for Zamboanga City in the
upcoming local elections scheduled on May 13, 2013 (May 2013 Elections). In his CoC,
petitioner stated, inter alia, that he is eligible for the said office and that he is a registered
voter of Barangay Tetuan, Zamboanga City.
On October 18, 2012,11 the MTCC denied his Petition for Inclusion on account of his
perpetual absolute disqualification which in effect, deprived him of the right to vote in any
election. Such denial was affirmed by the Regional Trial Court of Zamboanga City, Branch
14 (RTC) in its October 31, 2012 Order 12 which, pursuant to Section 13813 of Batas
Pambansa Bilang 881, as amended, otherwise known as the "Omnibus Election Code"
(OEC), was immediately final and executory.
Meanwhile, five (5) petitions were lodged before the COMELEC’s First and Second
Divisions (COMELEC Divisions), praying for the denial of due course to and/or cancellation
of petitioner’s CoC. Pending resolution, the COMELEC En Banc issued motu proprio
Resolution No. 961314 on January 15, 2013, resolving "to CANCEL and DENY due course
the Certificate of Candidacy filed by Romeo G. Jalosjos as Mayor of Zamboanga City in the
May 13, 2013 National and Local Elections" due to his perpetual absolute disqualification as
well as his failure to comply with the voter registration requirement. As basis, the
COMELEC En Banc relied on the Court’s pronouncement in the consolidated cases of
Dominador Jalosjos, Jr. v. COMELEC and Agapito Cardino v. COMELEC 15 (Jalosjos, Jr.
and Cardino).
Hence, the instant petition.
Issues Before the Court
Submitted for the Court’s determination are the following issues: (a) whether the COMELEC
En Banc acted beyond its jurisdiction when it issued motu proprio Resolution No. 9613 and
in so doing, violated petitioner’s right to due process; and (b) whether petitioner’s perpetual
absolute disqualification to run for elective office had already been removed by Section
40(a) of Republic Act No. 7160, otherwise known as the "Local Government Code of 1991"
(LGC).
The petition is bereft of merit.
At the outset, the Court observes that the controversy in this case had already been mooted
by the exclusion of petitioner in the May 2013 Elections. Nevertheless, in view of the
doctrinal value of the issues raised herein, which may serve to guide both the bench and
the bar in the future, the Court takes this opportunity to discuss on the same.
A. Nature and validity of motu
proprio issuance of Resolution No.
9613.
Petitioner claims that the COMELEC En Banc usurped the COMELEC Divisions’ jurisdiction
by cancelling motu proprio petitioner’s CoC through Resolution No. 9613, contrary to
Section 3, Article IX-C of the 1987 Philippine Constitution (Constitution) which reads:
Josef Elvin Campos
SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases, including
pre-proclamation controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc. (Emphasis and underscoring supplied)
Concomitantly, he also claims that his right to procedural due process had been violated by
the aforementioned issuance.
The Court is not persuaded.
The above-cited constitutional provision requiring a motion for reconsideration before the
COMELEC En Banc may take action is confined only to cases where the COMELEC
exercises its quasi-judicial power. It finds no application, however, in matters concerning the
COMELEC’s exercise of administrative functions. The distinction between the two is well-
defined. As illumined in Villarosa v. COMELEC:16
The term ‘administrative’ connotes, or pertains, to ‘administration, especially management,
as by managing or conducting, directing or superintending, the execution, application, or
conduct of persons or things. It does not entail an opportunity to be heard, the production
and weighing of evidence, and a decision or resolution thereon. While a ‘quasi-judicial
function’ is a term which applies to the action, discretion, etc., of public administrative
officers or bodies, who are required to investigate facts, or ascertain the existence of facts,
hold hearings, and draw conclusions from them, as a basis for their official action and to
exercise discretion of a judicial nature. (Emphasis and underscoring supplied)
Crucial therefore to the present disquisition is the determination of the nature of the power
exercised by the COMELEC En Banc when it promulgated Resolution No. 9613.
The foregoing matter is not without established precedent. In Jalosjos, Jr. and Cardino, the
Court held that the COMELEC’s denial of due course to and/or cancellation of a CoC in
view of a candidate’s disqualification to run for elective office based on a final conviction is
subsumed under its mandate to enforce and administer all laws relating to the conduct of
elections. Accordingly, in such a situation, it is the COMELEC’s duty to cancel motu proprio
the candidate’s CoC, notwithstanding the absence of any petition initiating a quasi-judicial
proceeding for the resolution of the same. Thus, the Court stated: 17
Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code,
or under Section 40 of the Local Government Code, the COMELEC is under a legal duty to
cancel the certificate of candidacy of anyone suffering from the accessory penalty of
perpetual special disqualification to run for public office by virtue of a final judgment of
conviction. The final judgment of conviction is notice to the COMELEC of the disqualification
of the convict from running for public office. The law itself bars the convict from running for
public office, and the disqualification is part of the final judgment of conviction. The final
judgment of the court is addressed not only to the Executive branch, but also to other
government agencies tasked to implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to implement the
disqualification, it is assumed that the portion of the final judgment on disqualification to run
for elective public office is addressed to the COMELEC because under the Constitution the
COMELEC is duty bound to "enforce and administer all laws and regulations relative to the
conduct of an election." The disqualification of a convict to run for public office under the
Revised Penal Code, as affirmed by final judgment of a competent court, is part of the
enforcement and administration of "all laws" relating to the conduct of elections.
To allow the COMELEC to wait for a person to file a petition to cancel the certificate of
candidacy of one suffering from perpetual special disqualification will result in the anomaly
that these cases so grotesquely exemplify. Despite a prior perpetual special disqualification,
Jalosjos was elected and served twice as mayor. The COMELEC will be grossly remiss in
its constitutional duty to "enforce and administer all laws" relating to the conduct of elections
if it does not motu proprio bar from running for public office those suffering from perpetual
special disqualification by virtue of a final judgment. (Emphasis and underscoring supplied)
In Aratea v. COMELEC (Aratea),18 the Court similarly pronounced that the disqualification of
a convict to run for public office, as affirmed by final judgment of a competent court, is part
of the enforcement and administration of all laws relating to the conduct of elections. 19
Applying these principles to the case at bar, it is clear that the COMELEC En Banc did not
exercise its quasi-judicial functions when it issued Resolution No. 9613 as it did not assume
jurisdiction over any pending petition or resolve any election case before it or any of its
divisions. Rather, it merely performed its duty to enforce and administer election laws in
cancelling petitioner’s CoC on the basis of his perpetual absolute disqualification, the fact of
which had already been established by his final conviction. In this regard, the COMELEC En
Banc was exercising its administrative functions, dispensing with the need for a motion for
Josef Elvin Campos
reconsideration of a division ruling under Section 3, Article IX-C of the Constitution, the
same being required only in quasi-judicial proceedings.
Lest it be misunderstood, while the denial of due course to and/or cancellation of one’s CoC
generally necessitates the exercise of the COMELEC’s quasi-judicial functions commenced
through a petition based on either Sections 12 20 or 7821 of the OEC, or Section 4022 of the
LGC, when the grounds therefor are rendered conclusive on account of final and executory
judgments – as when a candidate’s disqualification to run for public office is based on a final
conviction – such exercise falls within the COMELEC’s administrative functions, as in this
case.
In this light, there is also no violation of procedural due process since the COMELEC En
Banc would be acting in a purely administrative manner. Administrative power is concerned
with the work of applying policies and enforcing orders as determined by proper
governmental organs.23 As petitioner’s disqualification to run for public office had already
been settled in a previous case and now stands beyond dispute, it is incumbent upon the
COMELEC En Banc to cancel his CoC as a matter of course, else it be remiss in fulfilling its
duty to enforce and administer all laws and regulations relative to the conduct of an election.
Equally compelling is the fact that the denial of petitioner’s Petition for Inclusion as a
registered voter in Zamboanga City had already attained finality by virtue of the RTC’s
Order dated October 31, 2012. In this accord, petitioner’s non-compliance with the voter
registration requirement under Section 39(a) of the LGC 24 is already beyond question and
likewise provides a sufficient ground for the cancellation of his CoC altogether.
B. Petitioner’s right to run for
elective office.
It is petitioner’s submission that Article 30 of the RPC was partially amended by Section
40(a) of the LGC and thus, claims that his perpetual absolute disqualification had already
been removed.
The argument is untenable.
Well-established is the rule that every new statute should be construed in connection with
those already existing in relation to the same subject matter and all should be made to
harmonize and stand together, if they can be done by any fair and reasonable
interpretation.25
On the one hand, Section 40(a) of the LGC, applicable as it is to local elective candidates,
provides:
SEC. 40. Disqualifications. – The following persons are disqualified from running for any
elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence; (Emphasis and underscoring supplied)
And on the other hand, Article 30 of the RPC reads:
ART. 30. Effects of the penalties of perpetual or temporary absolute disqualification. - The
penalties of perpetual or temporary absolute disqualification for public office shall produce
the following effects:
1. The deprivation of the public offices and employments which the offender may
have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular office or to be
elected to such office.
3. The disqualification for the offices or public employments and for the exercise of
any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in
paragraphs 2 and 3 of this Article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly
held. (Emphasis and underscoring supplied)
Keeping with the above-mentioned statutory construction principle, the Court observes that
the conflict between these provisions of law may be properly reconciled. In particular, while
Section 40(a) of the LGC allows a prior convict to run for local elective office after the lapse
of two (2) years from the time he serves his sentence, the said provision should not be
deemed to cover cases wherein the law 26 imposes a penalty, either as principal or
accessory,27 which has the effect of disqualifying the convict to run for elective office. An
example of this would be Article 41 of the RPC, which imposes the penalty of
perpetual28 absolute29 disqualification as an accessory to the principal penalties of reclusion
perpetua and reclusion temporal:
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties. - The
penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil
Josef Elvin Campos
interdiction for life or during the period of the sentence as the case may be, and that of
perpetual absolute disqualification which the offender shall suffer even though pardoned as
to the principal penalty, unless the same shall have been expressly remitted in the pardon.
In this relation, Article 30 of the RPC, as earlier cited, provides that the penalty of perpetual
absolute disqualification has the effect of depriving the convicted felon of the privilege to run
for elective office. To note, this penalty, as well as other penalties of similar import, is based
on the presumptive rule that one who is rendered infamous by conviction of a felony, or
other base offense indicative of moral turpitude, is unfit to hold public office, 30 as the same
partakes of a privilege which the State grants only to such classes of persons which are
most likely to exercise it for the common good. 31
Pertinently, it is observed that the import of Article 41 in relation to Article 30 of the RPC is
more direct and specific in nature – insofar as it deprives the candidate to run for elective
office due to his conviction – as compared to Section 40(a) of the LGC which broadly
speaks of offenses involving moral turpitude and those punishable by one (1) year or more
of imprisonment without any consideration of certain disqualifying effects to one’s right to
suffrage. Accordingly, Section 40(a) of the LGC should be considered as a law of general
application and therefore, must yield to the more definitive RPC provisions in line with the
principle of lex specialis derogat generali – general legislation must give way to special
legislation on the same subject, and generally is so interpreted as to embrace only cases in
which the special provisions are not applicable. In other words, where two statutes are of
equal theoretical application to a particular case, the one specially designed therefor should
prevail.32
In the present case, petitioner was sentenced to suffer the principal penalties of reclusion
perpetua and reclusion temporal which, pursuant to Article 41 of the RPC, carried with it the
accessory penalty of perpetual absolute disqualification and in turn, pursuant to Article 30 of
the RPC, disqualified him to run for elective office. As discussed, Section 40(a) of the LGC
would not apply to cases wherein a penal provision – such as Article 41 in this case –
directly and specifically prohibits the convict from running for elective office. Hence, despite
the lapse of two (2) years from petitioner’s service of his commuted prison term, he remains
bound to suffer the accessory penalty of perpetual absolute disqualification which
consequently, disqualifies him to run as mayor for Zamboanga City.
Notably, Article 41 of the RPC expressly states that one who is previously convicted of a
crime punishable by reclusion perpetua or reclusion temporal continues to suffer the
accessory penalty of perpetual absolute disqualification even though pardoned as to the
principal penalty, unless the said accessory penalty shall have been expressly remitted in
the pardon.33 In this case, the same accessory penalty had not been expressly remitted in
the Order of Commutation or by any subsequent pardon and as such, petitioner’s
disqualification to run for elective office is deemed to subsist.
Further, it is well to note that the use of the word "perpetual" in the aforementioned
accessory penalty connotes a lifetime restriction and in this respect, does not depend on the
length of the prison term which is imposed as its principal penalty. Instructive on this point is
the Court’s ruling in Lacuna v. Abes, 34 where the court explained the meaning of the term
"perpetual" as applied to the penalty of disqualification to run for public office:
The accessory penalty of temporary absolute disqualification disqualifies the convict for
public office and for the right to vote, such disqualification to last only during the term of the
sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of
Abes, would have expired on 13 October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual special
disqualification for the exercise of the right of suffrage. This accessory penalty deprives the
convict of the right to vote or to be elected to or hold public office perpetually, as
distinguished from temporary special disqualification, which lasts during the term of the
sentence. (Emphasis and underscoring supplied)
Likewise, adopting the Lacuna ruling, the Court, in the more recent cases of
Aratea,35 Jalosjos, Jr. and Cardino,36 held:
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification
"deprives the convict of the right to vote or to be elected to or hold public office perpetually."
The accessory penalty of perpetual special disqualification takes effect immediately once
the judgment of conviction becomes final. The effectivity of this accessory penalty does not
depend on the duration of the principal penalty, or on whether the convict serves his jail
sentence or not. The last sentence of Article 32 states that "the offender shall not be
permitted to hold any public office during the period of his [perpetual special]
disqualification." Once the judgment of conviction becomes final, it is immediately
Josef Elvin Campos
executory. Any public office that the convict may be holding at the time of his conviction
becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for
any elective public office perpetually. (Emphasis underscoring supplied)
All told, applying the established principles of statutory construction, and more significantly,
considering the higher interests of preserving the sanctity of our elections, the Court holds
that Section 40(a) of the LGC has not removed the penalty of perpetual absolute
disqualification which petitioner continues to suffer.1âwphi1 Thereby, he remains
disqualified to run for any elective office pursuant to Article 30 of the RPC.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
Aratea v. Comelec (G.R. No. 195229, 09 October 2012)

G.R. No. 195229 October 9, 2012
EFREN RACEL ARA TEA, Petitioner,
vs.
COMMISSiON ON ELECTIONS and ESTELA D. ANTlPOLO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a special civil action for certiorari1 seeking to review and nullify the
Resolution2 dated 2 February 2011 and the Order 3 dated 12 January 2011 of the
Commission on Elections (COMELEC) En Banc in Dra. Sigrid S. Rodolfo v. Romeo D.
Lonzanida, docketed as SPA No. 09-158 (DC). The petition asserts that the COMELEC
issued the Resolution and Order with grave abuse of discretion amounting to lack or excess
of jurisdiction.
The Facts
Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo) were candidates for
Mayor of San Antonio, Zambales in the May 2010 National and Local Elections. Lonzanida
filed his certificate of candidacy on 1 December 2009. 4 On 8 December 2009, Dra. Sigrid S.
Rodolfo (Rodolfo) filed a petition under Section 78 of the Omnibus Election Code to
disqualify Lonzanida and to deny due course or to cancel Lonzanida’s certificate of
candidacy on the ground that Lonzanida was elected, and had served, as mayor of San
Antonio, Zambales for four (4) consecutive terms immediately prior to the term for the May
2010 elections. Rodolfo asserted that Lonzanida made a false material representation in his
certificate of candidacy when Lonzanida certified under oath that he was eligible for the
office he sought election. Section 8, Article X of the 1987 Constitution 5 and Section 43(b) of
the Local Government Code6 both prohibit a local elective official from being elected and
serving for more than three consecutive terms for the same position.
The COMELEC Second Division rendered a Resolution 7 on 18 February 2010 cancelling
Lonzanida’s certificate of candidacy. Pertinent portions of the 18 February 2010 Resolution
read:
Respondent Lonzanida never denied having held the office of mayor of San Antonio,
Zambales for more than nine consecutive years. Instead he raised arguments to forestall or
dismiss the petition on the grounds other than the main issue itself. We find such arguments
as wanting. Respondent Lonzanida, for holding the office of mayor for more than three
consecutive terms, went against the three-term limit rule; therefore, he could not be allowed
to run anew in the 2010 elections. It is time to infuse new blood in the political arena of San
Antonio.
WHEREFORE, premises considered, the instant petition is hereby GRANTED. The
Certificate of Candidacy of Respondent Romeo D. Lonzanida for the position of mayor in
the municipality of San Antonio, Zambales is hereby CANCELLED. His name is hereby
ordered STRICKEN OFF the list of Official Candidates for the position of Mayor of San
Antonio, Zambales in May 10, 2010 elections.
SO ORDERED.8
Lonzanida’s motion for reconsideration before the COMELEC En Banc remained pending
during the May 2010 elections. Lonzanida and Efren Racel Aratea (Aratea) garnered the
highest number of votes and were respectively proclaimed Mayor and Vice-Mayor.
Aratea took his oath of office as Acting Mayor before Regional Trial Court (RTC) Judge
Raymond C. Viray of Branch 75, Olongapo City on 5 July 2010. 9 On the same date, Aratea
wrote the Department of Interior and Local Government (DILG) and requested for an
opinion on whether, as Vice-Mayor, he was legally required to assume the Office of the
Josef Elvin Campos
Mayor in view of Lonzanida’s disqualification. DILG Legal Opinion No. 117, S. 2010 10 stated
that Lonzanida was disqualified to hold office by reason of his criminal conviction. As a
consequence of Lonzanida’s disqualification, the Office of the Mayor was deemed
permanently vacant. Thus, Aratea should assume the Office of the Mayor in an acting
capacity without prejudice to the COMELEC’s resolution of Lonzanida’s motion for
reconsideration. In another letter dated 6 August 2010, Aratea requested the DILG to allow
him to take the oath of office as Mayor of San Antonio, Zambales. In his response dated 24
August 2010, then Secretary Jesse M. Robredo allowed Aratea to take an oath of office as
"the permanent Municipal Mayor of San Antonio, Zambales without prejudice however to
the outcome of the cases pending before the [COMELEC]." 11
On 11 August 2010, the COMELEC En Banc issued a Resolution 12 disqualifying Lonzanida
from running for Mayor in the May 2010 elections. The COMELEC En Banc’s resolution was
based on two grounds: first, Lonzanida had been elected and had served as Mayor for more
than three consecutive terms without interruption; and second, Lonzanida had been
convicted by final judgment of ten (10) counts of falsification under the Revised Penal Code.
Lonzanida was sentenced for each count of falsification to imprisonment of four (4) years
and one (1) day of prisión correccional as minimum, to eight (8) years and one (1) day
of prisión mayor as maximum. The judgment of conviction became final on 23 October
2009 in the Decision of this Court in Lonzanida v. People,13 before Lonzanida filed his
certificate of candidacy on 1 December 2009. Pertinent portions of the 11 August 2010
Resolution read:
Prescinding from the foregoing premises, Lonzanida, for having served as Mayor of San
Antonio, Zambales for more than three (3) consecutive terms and for having been convicted
by a final judgment of a crime punishable by more than one (1) year of imprisonment, is
clearly disqualified to run for the same position in the May 2010 Elections.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby DENIED.
SO ORDERED.14
On 25 August 2010, Antipolo filed a Motion for Leave to Intervene and to Admit Attached
Petition-in-Intervention.15 She claimed her right to be proclaimed as Mayor of San Antonio,
Zambales because Lonzanida ceased to be a candidate when the COMELEC Second
Division, through its 18 February 2010 Resolution, ordered the cancellation of his certificate
of candidacy and the striking out of his name from the list of official candidates for the
position of Mayor of San Antonio, Zambales in the May 2010 elections.
In his Comment filed on 26 January 2011, Aratea asserted that Antipolo, as the candidate
who received the second highest number of votes, could not be proclaimed as the winning
candidate. Since Lonzanida’s disqualification was not yet final during election day, the votes
cast in his favor could not be declared stray. Lonzanida’s subsequent disqualification
resulted in a permanent vacancy in the Office of Mayor, and Aratea, as the duly-elected
Vice-Mayor, was mandated by Section 44 16 of the Local Government Code to succeed as
Mayor.
The COMELEC’s Rulings
The COMELEC En Banc issued an Order dated 12 January 2011, stating:
Acting on the "Motion for Leave to Intervene and to Admit Attached Petition-in-Intervention"
filed by Estela D. Antipolo (Antipolo) and pursuant to the power of this Commission to
suspend its Rules or any portion thereof in the interest of justice, this Commission hereby
RESOLVES to:
1. GRANT the aforesaid Motion;
2. ADMIT the Petition-in-Intervention filed by Antipolo;
3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as well as EFREN RACEL
ARATEA, proclaimed Vice-Mayor of San Antonio, Zambales, to file their respective
Comments on the Petition-in- Intervention within a non-extendible period of five (5) days
from receipt thereof;
4. SET the above-mentioned Petition-in-Intervention for hearing on January 26, 2011 at
10:00 a.m. COMELEC Session Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.
WHEREFORE, furnish copies hereof the parties for their information and compliance.
SO ORDERED.17
In its Resolution dated 2 February 2011, the COMELEC En Banc no longer considered
Lonzanida’s qualification as an issue: "It is beyond cavil that Lonzanida is not eligible to
hold and discharge the functions of the Office of the Mayor of San Antonio, Zambales. The
sole issue to be resolved at this juncture is how to fill the vacancy resulting from
Lonzanida’s disqualification."18 The Resolution further stated:
We cannot sustain the submission of Oppositor Aratea that Intervenor Antipolo could never
be proclaimed as the duly elected Mayor of Antipolo [sic] for being a second placer in the
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elections. The teachings in the cases of Codilla vs. De Venecia and Nazareno and Domino
vs. COMELEC, et al., while they remain sound jurisprudence find no application in the case
at bar. What sets this case apart from the cited jurisprudence is that the notoriety of
Lonzanida’s disqualification and ineligibility to hold public office is established both in fact
and in law on election day itself. Hence, Lonzanida’s name, as already ordered by the
Commission on February 18, 2010 should have been stricken off from the list of official
candidates for Mayor of San Antonio, Zambales.
WHEREFORE, in view of the foregoing, the Commission hereby:
1. Declares NULL and VOID the proclamation of respondent ROMEO D. LONZANIDA;
2. GRANTS the Petition for Intervention of Estela D. Antipolo;
3. Orders the immediate CONSTITUTION of a Special Municipal Board of Canvassers to
PROCLAIM Intervenor Estela D. Antipolo as the duly elected Mayor of San Antonio,
Zambales;
4. Orders Vice-Mayor Efren Racel Aratea to cease and desist from discharging the
functions of the Office of the Mayor, and to cause a peaceful turn-over of the said office to
Antipolo upon her proclamation; and
5. Orders the Office of the Executive Director as well as the Regional Election Director of
Region III to cause the implementation of this Resolution and disseminate it to the
Department of Interior and Local Government.
SO ORDERED.19
Aratea filed the present petition on 9 February 2011.
The Issues
The manner of filling up the permanent vacancy in the Office of the Mayor of San Antonio,
Zambales is dependent upon the determination of Lonzanida’s removal. Whether Lonzanida
was disqualified under Section 68 of the Omnibus Election Code, or made a false material
representation under Section 78 of the same Code that resulted in his certificate of
candidacy being void ab initio, is determinative of whether Aratea or Antipolo is the
rightful occupant to the Office of the Mayor of San Antonio, Zambales.
The dissenting opinions reverse the COMELEC’s 2 February 2011 Resolution and 12
January 2011 Order. They hold that Aratea, the duly elected Vice-Mayor of San Antonio,
Zambales, should be declared Mayor pursuant to the Local Government Code’s rule on
succession.
The dissenting opinions make three grave errors: first, they ignore prevailing jurisprudence
that a false representation in the certificate of candidacy as to eligibility in the number of
terms elected and served is a material fact that is a ground for a petition to cancel a
certificate of candidacy under Section 78; second, they ignore that a false representation as
to eligibility to run for public office due to the fact that the candidate suffers from
perpetual special disqualification is a material fact that is a ground for a petition to cancel a
certificate of candidacy under Section 78; and third, they resort to a strained statutory
construction to conclude that the violation of the three-term limit rule cannot be a ground for
cancellation of a certificate of candidacy under Section 78, even when it is clear and plain
that violation of the three-term limit rule is an ineligibility affecting the qualification of a
candidate to elective office.
The dissenting opinions tread on dangerous ground when they assert that a candidate’s
eligibility to the office he seeks election must be strictly construed to refer only to the
details, i.e., age, citizenship, or residency, among others, which the law requires him to
state in his COC, and which he must swear under oath to possess. The dissenting opinions
choose to view a false certification of a candidate’s eligibility on the three-term limit rule not
as a ground for false material representation under Section 78 but as a ground for
disqualification under Section 68 of the same Code. This is clearly contrary to well-
established jurisprudence.
We hold that Antipolo, the alleged "second placer," should be proclaimed Mayor because
Lonzanida’s certificate of candidacy was void ab initio. In short, Lonzanida was never a
candidate at all. All votes for Lonzanida were stray votes. Thus, Antipolo, the only qualified
candidate, actually garnered the highest number of votes for the position of Mayor.
Qualifications and Disqualifications
Section 65 of the Omnibus Election Code points to the Local Government Code for the
qualifications of elective local officials. Paragraphs (a) and (c) of Section 39 and Section 40
of the Local Government Code provide in pertinent part:
Sec. 39. Qualifications. ‒ (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city or province x x x; a resident therein for at
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least one (1) year immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.
xxxx
(c) Candidates for the position of mayor or vice-mayor of independent component cities,
component cities, or municipalities must be at least twenty-one (21) years of age on election
day.
xxxx
Sec. 40. Disqualifications. - The following persons are disqualified from running for any
(a) Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of imprisonment, within two (2) years
after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded. (Emphasis supplied)
Section 12 of the Omnibus Election Code provides:
Sec. 12. Disqualification. — Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he was sentenced to a penalty of
more than eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or
after the expiration of a period of five years from his service of sentence, unless within the
same period he again becomes disqualified. (Emphasis supplied)
The grounds for disqualification for a petition under Section 68 of the Omnibus Election
Code are specifically enumerated:
Sec. 68. Disqualifications. ‒ Any candidate who, in an action or protest in which he is a
party is declared by final decision by a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104; (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6,
shall be disqualified from continuing as a candidate, or if he has been elected, from holding
the office. Any person who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unless said person has
waived his status as permanent resident or immigrant of a foreign country in accordance
with the residence requirement provided for in the election laws. (Emphasis supplied)
A petition for disqualification under Section 68 clearly refers to "the commission of
prohibited acts and possession of a permanent resident status in a foreign country." 20 All
the offenses mentioned in Section 68 refer to election offenses under the Omnibus
Election Code, not to violations of other penal laws. There is absolutely nothing in the
language of Section 68 that would justify including violation of the three-term limit rule, or
conviction by final judgment of the crime of falsification under the Revised Penal Code, as
one of the grounds or offenses covered under Section 68. In Codilla, Sr. v. de
Venecia,21 this Court ruled:
[T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in
Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit
of COMELEC jurisdiction. They are criminal and not administrative in nature. x x x
Clearly, the violation by Lonzanida of the three-term limit rule, or his conviction by final
judgment of the crime of falsification under the Revised Penal Code, does not constitute a
ground for a petition under Section 68.
False Material Representation
Section 78 of the Omnibus Election Code states that a certificate of candidacy may be
denied or cancelled when there is false material representation of the contents of the
certificate of candidacy:
Josef Elvin Campos
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. ‒ A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
the person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any
time not later than twenty-five days from the time of the filing of the certificate of candidacy
and shall be decided, after due notice and hearing, not later than fifteen days before the
election. (Emphasis supplied)
Section 74 of the Omnibus Election Code details the contents of the certificate of
candidacy:
Sec. 74. Contents of certificate of candidacy. ‒ The certificate of candidacy shall state
that the person filing it is announcing his candidacy for the office stated therein and that
he is eligible for said office; if for Member of the Batasang Pambansa, the province,
including its component cities, highly urbanized city or district or sector which he seeks to
represent; the political party to which he belongs; civil status; his date of birth; residence; his
post office address for all election purposes; his profession or occupation; that he will
support and defend the Constitution of the Philippines and will maintain true faith and
allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the
duly constituted authorities; that he is not a permanent resident or immigrant to a foreign
country; that the obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the certificate of candidacy
are true to the best of his knowledge.
A candidate for mayor in the 2010 local elections was thus required to provide 12 items of
information in the certificate of candidacy: 22 name; nickname or stage name; gender; age;
place of birth; political party that nominated the candidate; civil status; residence/address;
profession or occupation; post office address for election purposes; locality of which the
candidate is a registered voter; and period of residence in the Philippines before 10 May
2010. The candidate also certifies four statements: a statement that the candidate is a
natural born or naturalized Filipino citizen; a statement that the candidate is not a
permanent resident of, or immigrant to, a foreign country; a statement that the candidate
is eligible for the office he seeks election; and a statement of the candidate’s allegiance
to the Constitution of the Republic of the Philippines. 23 The certificate of candidacy should
also be under oath, and filed within the period prescribed by law.
The conviction of Lonzanida by final judgment, with the penalty of prisión
mayor, disqualifies him perpetually from holding any public office, or from being
elected to any public office. This perpetual disqualification took effect upon the
finality of the judgment of conviction, before Lonzanida filed his certificate of
candidacy. The pertinent provisions of the Revised Penal Code are as follows:
Art. 27. Reclusion perpetua. — x x x
Prisión mayor and temporary disqualification. — The duration of the penalties of prisión
mayor and temporary disqualification shall be from six years and one day to twelve
years, except when the penalty of disqualification is imposed as an accessory
penalty, in which case, it shall be that of the principal penalty.
xxxx
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The
penalties of perpetual or temporary absolute disqualification for public office shall
produce the following effects:
1. The deprivation of the public offices and employments which the offender may
have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office or
to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of
any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2
and 3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The
penalties of perpetual or temporary special disqualification for public office, profession
or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually or during
the term of the sentence, according to the extent of such disqualification.
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Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the
exercise of the right of suffrage. — The perpetual or temporary special disqualification
for the exercise of the right of suffrage shall deprive the offender perpetually or
during the term of the sentence, according to the nature of said penalty, of the right to
vote in any popular election for any public office or to be elected to such
office. Moreover, the offender shall not be permitted to hold any public office during
the period of his disqualification.
Art. 42. Prisión mayor — Its accessory penalties. — The penalty of prision mayor shall carry
with it that of temporary absolute disqualification and that of perpetual special
disqualification from the right of suffrage which the offender shall suffer although pardoned
as to the principal penalty, unless the same shall have been expressly remitted in the
pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by operation of law, 24 the
accessory penalties of temporary absolute disqualification and perpetual special
disqualification. Under Article 30 of the Revised Penal Code, temporary absolute
disqualification produces the effect of "deprivation of the right to vote in any election for any
popular elective office or to be elected to such office.” The duration of temporary absolute
disqualification is the same as that of the principal penalty of prisión mayor. On the other
hand, under Article 32 of the Revised Penal Code, perpetual special
disqualification means that "the offender shall not be permitted to hold any public
office during the period of his disqualification,” which is perpetually. Both temporary
absolute disqualification and perpetual special disqualification constitute ineligibilities to hold
elective public office. A person suffering from these ineligibilities is ineligible to run for
elective public office, and commits a false material representation if he states in his
certificate of candidacy that he is eligible to so run.
In Lacuna v. Abes (Lacuna),25 the Court, speaking through Justice J.B.L. Reyes, explained
the import of the accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that appellee’s
conviction of a crime penalized with prision mayor which carried the accessory penalties of
temporary absolute disqualification and perpetual special disqualification from the right of
suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election Code
disqualifies a person from voting if he had been sentenced by final judgment to suffer one
year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the convict for
public office and for the right to vote, such disqualification to last only during the term of the
sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of
Abes, would have expired on 13 October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual special
disqualification for the exercise of the right of suffrage. This accessory penalty deprives the
convict of the right to vote or to be elected to or hold public office perpetually, as
distinguished from temporary special disqualification, which lasts during the term of the
sentence. Article 32, Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the
exercise of the right of suffrage. — The perpetual or temporary special disqualification for
the exercise of the right of suffrage shall deprive the offender perpetually or during the term
of the sentence, according to the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office. Moreover, the offender shall not
be permitted to hold any public office during the period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be applied
distributively to their respective antecedents; thus, the word "perpetually" refers to the
perpetual kind of special disqualification, while the phrase "during the term of the sentence"
refers to the temporary special disqualification. The duration between the perpetual and the
temporary (both special) are necessarily different because the provision, instead of merging
their durations into one period, states that such duration is "according to the nature of said
penalty" — which means according to whether the penalty is the perpetual or the temporary
special disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification
"deprives the convict of the right to vote or to be elected to or hold public office
perpetually.”
The accessory penalty of perpetual special disqualification takes effect immediately
once the judgment of conviction becomes final. The effectivity of this accessory penalty
does not depend on the duration of the principal penalty, or on whether the convict serves
his jail sentence or not. The last sentence of Article 32 states that "the offender shall not be
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permitted to hold any public office during the period of his [perpetual special]
disqualification." Once the judgment of conviction becomes final, it is immediately
executory. Any public office that the convict may be holding at the time of his conviction
becomes vacant upon finality of the judgment, and the convict becomes ineligible to run
for any elective public office perpetually. In the case of Lonzanida, he became
ineligible perpetually to hold, or to run for, any elective public office from the time
the judgment of conviction against him became final. The judgment of conviction
was promulgated on 20 July 2009 and became final on 23 October 2009, before
Lonzanida filed his certificate of candidacy on 1 December 2009 . 26
Perpetual special disqualification is a ground for a petition under Section 78 of the
Omnibus Election Code because this accessory penalty is an ineligibility, which means
that the convict is not eligible to run for public office, contrary to the statement that Section
74 requires him to state under oath in his certificate of candidacy. As this Court held
in Fermin v. Commission on Elections,27 the false material representation may refer to
"qualifications or eligibility.” One who suffers from perpetual special disqualification is
ineligible to run for public office. If a person suffering from perpetual special disqualification
files a certificate of candidacy stating under oath that "he is eligible to run for (public)
office," as expressly required under Section 74, then he clearly makes a false material
representation that is a ground for a petition under Section 78. As this Court explained
in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not
based on the lack of qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications required of the public
office he/she is running for. It is noted that the candidate states in his/her CoC that
he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to
be read in relation to the constitutional and statutory provisions on qualifications or
eligibility for public office. If the candidate subsequently states a material
representation in the CoC that is false, the COMELEC, following the law, is
empowered to deny due course to or cancel such certificate. Indeed, the Court has
already likened a proceeding under Section 78 to a quo warranto proceeding under Section
253 of the OEC since they both deal with the eligibility or qualification of a candidate, with
the distinction mainly in the fact that a "Section 78" petition is filed before proclamation,
while a petition for quo warranto is filed after proclamation of the winning
candidate.28 (Emphasis supplied)
Latasa, Rivera and Ong:
The Three-Term Limit Rule as a Ground for Ineligibility
Section 74 requires the candidate to certify that he is eligible for the public office he
seeks election. Thus, Section 74 states that "the certificate of candidacy shall state that
the person filing x x x is eligible for said office.” The three-term limit rule, enacted to
prevent the establishment of political dynasties and to enhance the electorate’s freedom of
choice,29 is found both in the Constitution 30 and the law.31 After being elected and serving for
three consecutive terms, an elective local official cannot seek immediate reelection for the
same office in the next regular election 32 because he is ineligible. One who has an
ineligibility to run for elective public office is not "eligible for [the] office." As used in Section
74, the word "eligible"33 means having the right to run for elective public office, that is,
having all the qualifications and none of the ineligibilities to run for the public office.
In Latasa v. Commission on Elections, 34 petitioner Arsenio Latasa was elected mayor of the
Municipality of Digos, Davao del Sur in 1992, 1995, and 1998. The Municipality of Digos
was converted into the City of Digos during Latasa’s third term. Latasa filed his certificate of
candidacy for city mayor for the 2001 elections. Romeo Sunga, Latasa’s opponent, filed
before the COMELEC a "petition to deny due course, cancel certificate of candidacy and/or
disqualification" under Section 78 on the ground that Latasa falsely represented in his
certificate of candidacy that he is eligible to run as mayor of Digos City. Latasa argued that
he did not make any false representation. In his certificate of candidacy, Latasa inserted a
footnote after the phrase "I am eligible" and indicated "*Having served three (3) term[s] as
municipal mayor and now running for the first time as city mayor." The COMELEC First
Division cancelled Latasa’s certificate of candidacy for violation of the three-term limit rule
but not for false material representation. This Court affirmed the COMELEC En Banc’s
denial of Latasa’s motion for reconsideration.
We cancelled Marino Morales’ certificate of candidacy in Rivera III v. Commission on
Elections (Rivera).35 We held that Morales exceeded the maximum three-term limit, having
been elected and served as Mayor of Mabalacat for four consecutive terms (1995 to 1998,
1998 to 2001, 2001 to 2004, and 2004 to 2007). We declared him ineligible as a candidate
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for the same position for the 2007 to 2010 term. Although we did not explicitly rule that
Morales’ violation of the three-term limit rule constituted false material representation, we
nonetheless granted the petition to cancel Morales’ certificate of candidacy under Section
78. We also affirmed the cancellation of Francis Ong’s certificate of candidacy in Ong v.
Alegre,36 where the "petition to disqualify, deny due course and cancel" Ong’s certificate of
candidacy under Section 78 was predicated on the violation of the three-term limit rule.
Loong, Fermin and Munder:
When Possession of a Disqualifying Condition
is Not a Ground for a Petition for Disqualification
It is obvious from a reading of the laws and jurisprudence that there is an overlap in the
grounds for eligibility and ineligibility vis-à-vis qualifications and disqualifications. For
example, a candidate may represent that he is a resident of a particular Philippine
locality37 when he is actually a permanent resident of another country. 38 In cases of such
overlap, the petitioner should not be constrained in his choice of remedy when the Omnibus
Election Code explicitly makes available multiple remedies. 39 Section 78 allows the filing of a
petition to deny due course or to cancel a certificate of candidacy before the election, while
Section 253 allows the filing of a petition for quo warranto after the election. Despite the
overlap of the grounds, one should not confuse a petition for disqualification using grounds
enumerated in Section 68 with a petition to deny due course or to cancel a certificate of
candidacy under Section 78.
The distinction between a petition under Section 68 and a petition under Section 78 was
discussed in Loong v. Commission on Elections 40 with respect to the applicable prescriptive
period. Respondent Nur Hussein Ututalum filed a petition under Section 78 to disqualify
petitioner Benjamin Loong for the office of Regional Vice-Governor of the Autonomous
Government of Muslim Mindanao for false representation as to his age. The petition was
filed 16 days after the election, and clearly beyond the prescribed 25 day period from the
last day of filing certificates of candidacy. This Court ruled that Ututalum’s petition was one
based on false representation under Section 78, and not for disqualification under Section
68. Hence, the 25-day prescriptive period provided in Section 78 should be strictly applied.
We recognized the possible gap in the law:
It is true that the discovery of false representation as to material facts required to be stated
in a certificate of candidacy, under Section 74 of the Code, may be made only after the
lapse of the 25-day period prescribed by Section 78 of the Code, through no fault of the
person who discovers such misrepresentations and who would want the disqualification of
the candidate committing the misrepresentations. It would seem, therefore, that there could
indeed be a gap between the time of the discovery of the misrepresentation, (when the
discovery is made after the 25-day period under Sec. 78 of the Code has lapsed) and the
time when the proclamation of the results of the election is made. During this so-called
"gap" the would-be petitioner (who would seek the disqualification of the candidate) is left
with nothing to do except to wait for the proclamation of the results, so that he could avail of
a remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto
against him. Respondent Commission sees this "gap" in what it calls a procedural gap
which, according to it, is unnecessary and should be remedied.
At the same time, it can not be denied that it is the purpose and intent of the legislative
branch of the government to fix a definite time within which petitions of protests related to
eligibility of candidates for elective offices must be filed, as seen in Sections 78 and 253 of
the Code. Respondent Commission may have seen the need to remedy this so-called
“procedural gap", but it is not for it to prescribe what the law does not provide, its function
not being legislative. The question of whether the time to file these petitions or protests is
too short or ineffective is one for the Legislature to decide and remedy. 41
In Fermin v. Commission on Elections,42 the issue of a candidate’s possession of the
required one-year residency requirement was raised in a petition for disqualification under
Section 68 instead of a petition to deny due course or to cancel a certificate of candidacy
under Section 78. Despite the question of the one-year residency being a proper ground
under Section 78, Dilangalen, the petitioner before the COMELEC in Fermin, relied on
Section 5(C)(1) and 5(C)(3)(a)(4) of COMELEC Resolution No. 7800 43 and filed the petition
under Section 68. In Fermin, we ruled that "a COMELEC rule or resolution cannot supplant
or vary legislative enactments that distinguish the grounds for disqualification from
those of ineligibility, and the appropriate proceedings to raise the said grounds." 44 A
petition for disqualification can only be premised on a ground specified in Section 12 or 68
of the Omnibus Election Code or Section 40 of the Local Government Code. Thus, a
petition questioning a candidate’s possession of the required one-year residency
requirement, as distinguished from permanent residency or immigrant status in a foreign
Josef Elvin Campos
country, should be filed under Section 78, and a petition under Section 68 is the wrong
remedy.
In Munder v. Commission on Elections,45 petitioner Alfais Munder filed a certificate of
candidacy for Mayor of Bubong, Lanao del Sur on 26 November 2009. Respondent Atty.
Tago Sarip filed a petition for Munder’s disqualification on 13 April 2010. Sarip claimed that
Munder misrepresented that he was a registered voter of Bubong, Lanao del Sur, and that
he was eligible to register as a voter in 2003 even though he was not yet 18 years of age at
the time of the voter’s registration. Moreover, Munder’s certificate of candidacy was not
accomplished in full as he failed to indicate his precinct and did not affix his thumb-mark.
The COMELEC Second Division dismissed Sarip’s petition and declared that his grounds
are not grounds for disqualification under Section 68 but for denial or cancellation of
Munder’s certificate of candidacy under Section 78. Sarip’s petition was filed out of time as
he had only 25 days after the filing of Munder’s certificate of candidacy, or until 21
December 2009, within which to file his petition.
The COMELEC En Banc, however, disqualified Munder. In reversing the COMELEC
Second Division, the COMELEC En Banc did not rule on the propriety of Sarip’s remedy but
focused on the question of whether Munder was a registered voter of Bubong, Lanao del
Sur. This Court reinstated the COMELEC Second Division’s resolution. This Court ruled that
the ground raised in the petition, lack of registration as voter in the locality where he was
running as a candidate, is inappropriate for a petition for disqualification. We further
declared that with our ruling in Fermin, we had already rejected the claim that lack of
substantive qualifications of a candidate is a ground for a petition for disqualification under
Section 68. The only substantive qualification the absence of which is a ground for a petition
under Section 68 is the candidate’s permanent residency or immigrant status in a foreign
country.
The dissenting opinions place the violation of the three-term limit rule as a disqualification
under Section 68 as the violation allegedly is "a status, circumstance or condition which
bars him from running for public office despite the possession of all the qualifications under
Section 39 of the [Local Government Code]." In so holding the dissenting opinions write in
the law what is not found in the law. Section 68 is explicit as to the proper grounds for
disqualification under said Section. The grounds for filing a petition for disqualification under
Section 68 are specifically enumerated in said Section. However, contrary to the specific
enumeration in Section 68 and contrary to prevailing jurisprudence, the dissenting opinions
add to the enumerated grounds the violation of the three-term limit rule and falsification
under the Revised Penal Code, which are obviously not found in the enumeration in Section
68.
The dissenting opinions equate Lonzanida’s possession of a disqualifying condition
(violation of the three-term limit rule) with the grounds for disqualification under Section 68.
Section 68 is explicit as to the proper grounds for disqualification: the commission of
specific prohibited acts under the Omnibus Election Code and possession of a permanent
residency or immigrant status in a foreign country. Any other false representation regarding
a material fact should be filed under Section 78, specifically under the candidate’s
certification of his eligibility. In rejecting a violation of the three-term limit as a condition for
eligibility, the dissenting opinions resort to judicial legislation, ignoring the verba
legis doctrine and well-established jurisprudence on this very issue.
In a certificate of candidacy, the candidate is asked to certify under oath his eligibility, and
thus qualification, to the office he seeks election. Even though the certificate of candidacy
does not specifically ask the candidate for the number of terms elected and served in an
elective position, such fact is material in determining a candidate’s eligibility, and thus
qualification for the office. Election to and service of the same local elective position for
three consecutive terms renders a candidate ineligible from running for the same position in
the succeeding elections. Lonzanida misrepresented his eligibility because he knew full well
that he had been elected, and had served, as mayor of San Antonio, Zambales for more
than three consecutive terms yet he still certified that he was eligible to run for mayor for the
next succeeding term. Thus, Lonzanida’s representation that he was eligible for the office
that he sought election constitutes false material representation as to his qualification or
eligibility for the office.
Legal Duty of COMELEC
to Enforce Perpetual Special Disqualification
Even without a petition under Section 78 of the Omnibus Election Code, the COMELEC is
under a legal duty to cancel the certificate of candidacy of anyone suffering from perpetual
special disqualification to run for public office by virtue of a final judgment of conviction. The
final judgment of conviction is judicial notice to the COMELEC of the disqualification of the
Josef Elvin Campos
convict from running for public office. The law itself bars the convict from running for public
office, and the disqualification is part of the final judgment of conviction. The final judgment
of the court is addressed not only to the Executive branch, but also to other government
agencies tasked to implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to implement the
disqualification, it is assumed that the portion of the final judgment on disqualification to run
for elective public office is addressed to the COMELEC because under the Constitution the
COMELEC is duty bound to "enforce and administer all laws and regulations relative to the
conduct of an election."46 The disqualification of a convict to run for elective public office
under the Revised Penal Code, as affirmed by final judgment of a competent court, is part
of the enforcement and administration of "all the laws" relating to the conduct of
elections.
Effect of a Void Certificate of Candidacy
A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and
much less to valid votes.47 We quote from the COMELEC’s 2 February 2011 Resolution with
approval:
As early as February 18, 2010, the Commission speaking through the Second Division had
already ordered the cancellation of Lonzanida’s certificate of candidacy, and had stricken off
his name in the list of official candidates for the mayoralty post of San Antonio, Zambales.
Thereafter, the Commission En Banc in its resolution dated August 11, 2010 unanimously
affirmed the resolution disqualifying Lonzanida. Our findings were likewise sustained by the
Supreme Court no less. The disqualification of Lonzanida is not simply anchored on one
ground. On the contrary, it was emphasized in our En Banc resolution that Lonzanida’s
disqualification is two-pronged: first, he violated the constitutional fiat on the three-term limit;
and second, as early as December 1, 2009, he is known to have been convicted by final
judgment for ten (10) counts of Falsification under Article 171 of the Revised Penal Code. In
other words, on election day, respondent Lonzanida’s disqualification is notoriously known
in fact and in law. Ergo, since respondent Lonzanida was never a candidate for the
position of Mayor [of] San Antonio, Zambales, the votes cast for him should be considered
stray votes. Consequently, Intervenor Antipolo, who remains as the sole qualified candidate
for the mayoralty post and obtained the highest number of votes, should now be proclaimed
as the duly elected Mayor of San Antonio, Zambales. 48 (Boldfacing and underscoring in the
original; italicization supplied)
Lonzanida's certificate of candidacy was cancelled because he was ineligible or not
qualified to run for Mayor.1âwphi1 Whether his certificate of candidacy is cancelled before
or after the elections is immaterial because the cancellation on such ground means he was
never a candidate from the very beginning, his certificate of candidacy being void ab
initio. There was only one qualified candidate for Mayor in the May 201 0 elections - Anti
polo, who therefore received the highest number of votes.
WHEREFORE, the petition is DISMISSED. The Resolution dated 2 February 2011 and the
Order dated 12 January 2011 of the COMELEC En Bane in SPA No. 09-158 (DC)
are AFFIRMED. The COMELEC En Bane is DIRECTED to constitute a Special Municipal
Board of Canvassers to proclaim Estela D. Antipolo as the duly elected Mayor of San
Antonio, Zambales. Petitioner Efren Racel Aratea is ORDERED to cease and desist from
discharging the functions of the Office of the Mayor of San Antonio, Zambales.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
Japzon v. Comelec (G.R. No. 180088, 19 January 2009)

G.R. No. 180088 January 19, 2009
MANUEL B. JAPZON, Petitioner,
vs.
COMMISSION ON ELECTIONS and JAIME S. TY, Respondents.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari under Rules 64 1 and 652 of the Revised Rules of
Court seeking to annul and set aside the Resolution 3 dated 31 July 2007 of the First
Division of public respondent Commission on Elections (COMELEC) and the
Resolution4 dated 28 September 2007 of COMELEC en banc, in SPA No. 07-568, for
having been rendered with grave abuse of discretion, amounting to lack or excess of
jurisdiction.
Josef Elvin Campos
Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were
candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar,
in the local elections held on 14 May 2007.
On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a
Petition5 to disqualify and/or cancel Ty’s Certificate of Candidacy on the ground of material
misrepresentation. Japzon averred in his Petition that Ty was a former natural-born Filipino,
having been born on 9 October 1943 in what was then Pambujan Sur, Hernani Eastern
Samar (now the Municipality of General Macarthur, Easter Samar) to spouses Ang Chim Ty
(a Chinese) and Crisanta Aranas Sumiguin (a Filipino). Ty eventually migrated to the United
States of America (USA) and became a citizen thereof. Ty had been residing in the USA for
the last 25 years. When Ty filed his Certificate of Candidacy on 28 March 2007, he falsely
represented therein that he was a resident of Barangay 6, Poblacion, General Macarthur,
Eastern Samar, for one year before 14 May 2007, and was not a permanent resident or
immigrant of any foreign country. While Ty may have applied for the reacquisition of his
Philippine citizenship, he never actually resided in Barangay 6, Poblacion, General
Macarthur, Eastern Samar, for a period of one year immediately preceding the date of
election as required under Section 39 of Republic Act No. 7160, otherwise known as the
Local Government Code of 1991. In fact, even after filing his application for reacquisition of
his Philippine citizenship, Ty continued to make trips to the USA, the most recent of which
was on 31 October 2006 lasting until 20 January 2007. Moreover, although Ty already took
his Oath of Allegiance to the Republic of the Philippines, he continued to comport himself as
an American citizen as proven by his travel records. He had also failed to renounce his
foreign citizenship as required by Republic Act No. 9225, otherwise known as the
Citizenship Retention and Reacquisition Act of 2003, or related laws. Hence, Japzon prayed
for in his Petition that the COMELEC order the disqualification of Ty from running for public
office and the cancellation of the latter’s Certificate of Candidacy.
In his Answer6 to Japzon’s Petition in SPA No. 07-568, Ty admitted that he was a natural-
born Filipino who went to the USA to work and subsequently became a naturalized
American citizen. Ty claimed, however, that prior to filing his Certificate of Candidacy for the
Office of Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March
2007, he already performed the following acts: (1) with the enactment of Republic Act No.
9225, granting dual citizenship to natural-born Filipinos, Ty filed with the Philippine
Consulate General in Los Angeles, California, USA, an application for the reacquisition of
his Philippine citizenship; (2) on 2 October 2005, Ty executed an Oath of Allegiance to the
Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate
General in Los Angeles, California, USA; (3) Ty applied for a Philippine passport indicating
in his application that his residence in the Philippines was at A. Mabini St., Barangay 6,
Poblacion, General Macarthur, Eastern Samar. Ty’s application was approved and he was
issued on 26 October 2005 a Philippine passport; (4) on 8 March 2006, Ty personally
secured and signed his Community Tax Certificate (CTC) from the Municipality of General
Macarthur, in which he stated that his address was at Barangay 6, Poblacion, General
Macarthur, Eastern Samar; (5) thereafter, on 17 July 2006, Ty was registered as a voter in
Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar; (6) Ty secured
another CTC dated 4 January 2007 again stating therein his address as Barangay 6,
Poblacion, General Macarthur, Eastern Samar; and (7) finally, Ty executed on 19 March
2007 a duly notarized Renunciation of Foreign Citizenship. Given the aforementioned facts,
Ty argued that he had reacquired his Philippine citizenship and renounced his American
citizenship, and he had been a resident of the Municipality of General Macarthur, Eastern
Samar, for more than one year prior to the 14 May 2007 elections. Therefore, Ty sought the
dismissal of Japzon’s Petition in SPA No. 07-568.
Pending the submission by the parties of their respective Position Papers in SPA No. 07-
568, the 14 May 2007 elections were already held. Ty acquired the highest number of votes
and was declared Mayor of the Municipality of General Macarthur, Eastern Samar, by the
Municipal Board of Canvassers on 15 May 2007. 7
Following the submission of the Position Papers of both parties, the COMELEC First
Division rendered its Resolution8 dated 31 July 2007 in favor of Ty.
The COMELEC First Division found that Ty complied with the requirements of Sections 3
and 5 of Republic Act No. 9225 and reacquired his Philippine citizenship, to wit:
Philippine citizenship is an indispensable requirement for holding an elective public office,
and the purpose of the citizenship qualification is none other than to ensure that no alien,
i.e., no person owing allegiance to another nation, shall govern our people and our country
or a unit of territory thereof. Evidences revealed that [Ty] executed an Oath of Allegiance
before Noemi T. Diaz, Vice Consul of the Philippine Consulate General, Los Angeles,
Josef Elvin Campos
California, U.S.A. on October 2, 2005 and executed a Renunciation of Foreign Citizenship
on March 19, 2007 in compliance with R.A. [No.] 9225. Moreover, neither is [Ty] a candidate
for or occupying public office nor is in active service as commissioned or non-commissioned
officer in the armed forces in the country of which he was naturalized citizen. 9
The COMELEC First Division also held that Ty did not commit material misrepresentation in
stating in his Certificate of Candidacy that he was a resident of Barangay 6, Poblacion,
General Macarthur, Eastern Samar, for at least one year before the elections on 14 May
2007. It reasoned that:
Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S.
citizen in 1969, the reacquisition of his Philippine citizenship and subsequent acts thereof
proved that he has been a resident of Barangay 6, Poblacion, General Macarthur, Eastern
Samar for at least one (1) year before the elections held on 14 May 2007 as he represented
in his certificate of candidacy[.]
As held in Coquilla vs. Comelec:
"The term ‘residence’ is to be understood not in its common acceptation as referring to
‘dwelling’ or ‘habitation,’ but rather to ‘domicile’ or legal residence, that is, ‘the place where a
party actually or constructively has his permanent home, where he, no matter where he may
be found at any given time, eventually intends to return and remain (animus manendi).’ A
domicile of origin is acquired by every person at birth. It is usually the place where the
child’s parents reside and continues until the same is abandoned by acquisition of new
domicile (domicile of choice).
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen
after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when
he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the
Philippines save as our immigration laws may have allowed him to stay as a visitor or as a
resident alien.
Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen.
Title 8, §1427(a) of the United States Code provides:
Requirements of naturalization: Residence
(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless
such applicant, (1) year immediately preceding the date of filing his application for
naturalization has resided continuously, after being lawfully admitted for permanent
residence, within the United States for at least five years and during the five years
immediately preceding the date of filing his petition has been physically present therein for
periods totaling at least half of that time, and who has resided within the State or within the
district of the Service in the United States in which the applicant filed the application for at
least three months, (2) has resided continuously within the United States from the date of
the application up to the time of admission to citizenship, and (3) during all period referred
to in this subsection has been and still is a person of good moral character, attached to the
principles of the Constitution of the United States, and well disposed to the good order and
happiness of the United States. (Emphasis added)
In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue
of a ‘greencard,’ which entitles one to reside permanently in that country, constitutes
abandonment of domicile in the Philippines. With more reason then does naturalization in a
foreign country result in an abandonment of domicile in the Philippines.
Records showed that after taking an Oath of Allegiance before the Vice Consul of the
Philippine Consulate General on October 2, 2005, [Ty] applied and was issued a Philippine
passport on October 26, 2005; and secured a community tax certificate from the
Municipality of General Macarthur on March 8, 2006. Evidently, [Ty] was already a resident
of Barangay 6, Poblacion, General Macarthur, Eastern Samar for more than one (1) year
before the elections on May 14, 2007.10 (Emphasis ours.)
The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division, thus,
reads:
WHEREFORE, premises considered, the petition is DENIED for lack of merit. 11
Japzon filed a Motion for Reconsideration of the foregoing Resolution of the COMELEC
First Division. On 28 September 2007, the COMELEC en banc issued its
Resolution12 denying Japzon’s Motion for Reconsideration and affirming the assailed
Resolution of the COMELEC First Division, on the basis of the following ratiocination:
We have held that a Natural born Filipino who obtains foreign citizenship, and subsequently
spurns the same, is by clear acts of repatriation a Filipino Citizen and hence qualified to run
as a candidate for any local post.
xxxx
Josef Elvin Campos
It must be noted that absent any showing of irregularity that overturns the prevailing status
of a citizen, the presumption of regularity remains. Citizenship is an important aspect of
every individual’s constitutionally granted rights and privileges. This is essential in
determining whether one has the right to exercise pre-determined political rights such as the
right to vote or the right to be elected to office and as such rights spring from citizenship.
Owing to its primordial importance, it is thus presumed that every person is a citizen of the
country in which he resides; that citizenship once granted is presumably retained unless
voluntarily relinquished; and that the burden rests upon who alleges a change in citizenship
and allegiance to establish the fact.
Our review of the Motion for Reconsideration shows that it does not raise any new or novel
issues. The arguments made therein have already been dissected and expounded upon
extensively by the first Division of the Commission, and there appears to be no reason to
depart from the wisdom of the earlier resolution. We thus affirm that [Ty] did not commit any
material misrepresentation when he accomplished his Certificate of Candidacy. The only
ground for denial of a Certificate of Candidacy would be when there was material
misrepresentation meant to mislead the electorate as to the qualifications of the candidate.
There was none in this case, thus there is not enough reason to deny due course to the
Certificate of Candidacy of Respondent James S. Ty. 13
Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file the
instant Petition for Certiorari, relying on the following grounds:
A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW
AND JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE
AND RESIDENCE.14
B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TY’S] CERTIFICATE OF
CANDIDACY, AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED
MAYOR OF GEN. MACARTHUR, EASTERN SAMAR.15
Japzon argues that when Ty became a naturalized American citizen, he lost his domicile of
origin. Ty did not establish his residence in the Municipality of General Macarthur, Eastern
Samar, Philippines, just because he reacquired his Philippine citizenship. The burden falls
upon Ty to prove that he established a new domicile of choice in General Macarthur,
Eastern Samar, a burden which he failed to discharge. Ty did not become a resident of
General Macarthur, Eastern Samar, by merely executing the Oath of Allegiance under
Republic Act No. 9225.
Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for
running as a mayoralty candidate in the 14 May 2007 local elections. The one-year
residency requirement for those running for public office cannot be waived or liberally
applied in favor of dual citizens. Consequently, Japzon believes he was the only remaining
candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar,
and is the only placer in the 14 May 2007 local elections.
Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and
28 September 2007 of the COMELEC First Division and en banc, respectively; to issue a
new resolution denying due course to or canceling Ty’s Certificate of Candidacy; and to
declare Japzon as the duly elected Mayor of the Municipality of General Macarthur, Eastern
Samar.
As expected, Ty sought the dismissal of the present Petition. According to Ty, the
COMELEC already found sufficient evidence to prove that Ty was a resident of the
Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May 2007 local
elections. The Court cannot evaluate again the very same pieces of evidence without
violating the well-entrenched rule that findings of fact of the COMELEC are binding on the
Court. Ty disputes Japzon’s assertion that the COMELEC committed grave abuse of
discretion in rendering the assailed Resolutions, and avers that the said Resolutions were
based on the evidence presented by the parties and consistent with prevailing jurisprudence
on the matter. Even assuming that Ty, the winning candidate for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, is indeed disqualified from running in the
local elections, Japzon as the second placer in the same elections cannot take his place.
The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to
meet the one-year residency requirement set by law to qualify him to run as a mayoralty
candidate in the 14 May 2007 local elections. The OSG opines that Ty was unable to prove
that he intended to remain in the Philippines for good and ultimately make it his new
Josef Elvin Campos
domicile. Nonetheless, the OSG still prays for the dismissal of the instant Petition
considering that Japzon, gathering only the second highest number of votes in the local
elections, cannot be declared the duly elected Mayor of the Municipality of General
Macarthur, Eastern Samar, even if Ty is found to be disqualified from running for the said
position. And since it took a position adverse to that of the COMELEC, the OSG prays from
this Court to allow the COMELEC to file its own Comment on Japzon’s Petition. The Court,
however, no longer acted on this particular prayer of the COMELEC, and with the
submission of the Memoranda by Japzon, Ty, and the OSG, it already submitted the case
for decision.
The Court finds no merit in the Petition at bar.
There is no dispute that Ty was a natural-born Filipino. He was born and raised in the
Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work in
the USA and eventually became an American citizen. On 2 October 2005, Ty reacquired his
Philippine citizenship by taking his Oath of Allegiance to the Republic of the Philippines
before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles,
California, USA, in accordance with the provisions of Republic Act No. 9225. 16 At this point,
Ty still held dual citizenship, i.e., American and Philippine. It was only on 19 March 2007
that Ty renounced his American citizenship before a notary public and, resultantly, became
a pure Philippine citizen again.
It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born
Filipino may reacquire or retain 17 his Philippine citizenship despite acquiring a foreign
citizenship, and provides for his rights and liabilities under such circumstances. A close
scrutiny of said statute would reveal that it does not at all touch on the matter of residence
of the natural-born Filipino taking advantage of its provisions. Republic Act No. 9225
imposes no residency requirement for the reacquisition or retention of Philippine citizenship;
nor does it mention any effect of such reacquisition or retention of Philippine citizenship on
the current residence of the concerned natural-born Filipino. Clearly, Republic Act No. 9225
treats citizenship independently of residence. This is only logical and consistent with the
general intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold,
at the same time, both Philippine and foreign citizenships, he may establish residence either
in the Philippines or in the foreign country of which he is also a citizen.
Residency in the Philippines only becomes relevant when the natural-born Filipino with dual
citizenship decides to run for public office.
Section 5(2) of Republic Act No. 9225 reads:
SEC. 5. Civil and Political Rights and Liabilities. – Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of the Philippines and the
xxxx
(2) Those seeking elective public office in the Philippines shall meet the qualifications for
holding such public office as required by the Constitution and existing laws and, at the time
of the filing of the certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to administer an oath.
Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or
retained his Philippine citizenship under Republic Act No. 9225, to run for public office, he
must: (1) meet the qualifications for holding such public office as required by the
Constitution and existing laws; and (2) make a personal and sworn renunciation of any and
all foreign citizenships before any public officer authorized to administer an oath.
That Ty complied with the second requirement is beyond question. On 19 March 2007, he
personally executed a Renunciation of Foreign Citizenship before a notary public. By the
time he filed his Certificate of Candidacy for the Office of Mayor of the Municipality of
General Macarthur, Eastern Samar, on 28 March 2007, he had already effectively
renounced his American citizenship, keeping solely his Philippine citizenship.
The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the qualifications
required by the Constitution and existing laws.
Article X, Section 3 of the Constitution left it to Congress to enact a local government code
which shall provide, among other things, for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of local officials, and all other
matters relating to the organization and operation of the local units.
Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local
Government Code of 1991, Section 39 of which lays down the following qualifications for
local elective officials:
Josef Elvin Campos
SEC. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city or province or, in the case of a member
of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the
district where he intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write Filipino or any
other local language or dialect.
xxxx
(c) Candidates for the position of mayor or vice mayor of independent component cities,
component cities, or municipalities must be at least twenty-one (21) years of age on election
day.
The challenge against Ty’s qualification to run as a candidate for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, centers on his purported failure to meet
the one-year residency requirement in the said municipality.
The term "residence" is to be understood not in its common acceptation as referring to
"dwelling" or "habitation," but rather to "domicile" or legal residence, that is, "the place
where a party actually or constructively has his permanent home, where he, no matter
where he may be found at any given time, eventually intends to return and remain (animus
manendi)."18
A domicile of origin is acquired by every person at birth. It is usually the place where the
child’s parents reside and continues until the same is abandoned by acquisition of new
domicile (domicile of choice). In Coquilla, 19 the Court already acknowledged that for an
individual to acquire American citizenship, he must establish residence in the USA. Since
Ty himself admitted that he became a naturalized American citizen, then he must have
necessarily abandoned the Municipality of General Macarthur, Eastern Samar, Philippines,
as his domicile of origin; and transferred to the USA, as his domicile of choice.
As has already been previously discussed by this Court herein, Ty’s reacquisition of his
Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on his
residence/domicile. He could still retain his domicile in the USA, and he did not necessarily
regain his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty
merely had the option to again establish his domicile in the Municipality of General
Macarthur, Eastern Samar, Philippines, said place becoming his new domicile of choice.
The length of his residence therein shall be determined from the time he made it his
domicile of choice, and it shall not retroact to the time of his birth.
How then could it be established that Ty indeed established a new domicile in the
Municipality of General Macarthur, Eastern Samar, Philippines?
In Papandayan, Jr. v. Commission on Elections, 20 the Court provided a summation of the
different principles and concepts in jurisprudence relating to the residency qualification for
elective local officials. Pertinent portions of the ratio in Papandayan are reproduced below:
Our decisions have applied certain tests and concepts in resolving the issue of whether or
not a candidate has complied with the residency requirement for elective positions. The
principle of animus revertendi has been used to determine whether a candidate has an
"intention to return" to the place where he seeks to be elected. Corollary to this is a
determination whether there has been an "abandonment" of his former residence which
signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set aside
the appealed orders of the COMELEC and the Court of Appeals and annulled the election
of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that
respondent’s immigration to the United States in 1984 constituted an abandonment of his
domicile and residence in the Philippines. Being a green card holder, which was proof that
he was a permanent resident or immigrant of the United States, and in the absence of any
waiver of his status as such before he ran for election on January 18, 1988, respondent was
held to be disqualified under §68 of the Omnibus Election Code of the Philippines (Batas
Pambansa Blg. 881).
In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was
proclaimed the duly elected representative of the 2nd District of Northern Samar. The
House of Representatives Electoral Tribunal (HRET) upheld his election against claims that
he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In
sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept
of animus revertendi or "intent to return," stating that his absence from his residence in
order to pursue studies or practice his profession as a certified public accountant in Manila
or his registration as a voter other than in the place where he was elected did not constitute
loss of residence. The fact that respondent made periodical journeys to his home province
in Laoag revealed that he always had animus revertendi.
Josef Elvin Campos
In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was
explained that the determination of a person’s legal residence or domicile largely depends
upon the intention that may be inferred from his acts, activities, and utterances. In that case,
petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local
elections of February 1, 1988 and who had thus been proclaimed as the duly elected
governor, was disqualified by the COMELEC for lack of residence and registration
qualifications, not being a resident nor a registered voter of Kananga, Leyte. The
COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one year
before the election by registering at Kananga, Leyte to qualify her to run for the position of
governor of the province of Leyte was proof that she considered herself a resident of Ormoc
City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had
established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time
that she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was
no evidence to show that she and her husband maintained separate residences, i.e., she at
Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited
Kananga, Leyte through the years did not signify an intention to continue her residence after
leaving that place.
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence"
are synonymous. The term "residence," as used in the election law, imports not only an
intention to reside in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to
which when absent for business or pleasure, or for like reasons, one intends to return. In
that case, petitioner Philip G. Romualdez established his residence during the early 1980’s
in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from the country
of petitioner, because of the EDSA People’s Power Revolution of 1986, to go into self-exile
in the United States until favorable conditions had been established, was not voluntary so
as to constitute an abandonment of residence. The Court explained that in order to acquire
a new domicile by choice, there must concur (1) residence or bodily presence in the new
locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile.
There must be animus manendi coupled with animus non revertendi. The purpose to remain
in or at the domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the new domicile
must be actual.
Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is
the decisive factor in determining whether or not an individual has satisfied the residency
qualification requirement.
As espoused by Ty, the issue of whether he complied with the one-year residency
requirement for running for public office is a question of fact. Its determination requires the
Court to review, examine and evaluate or weigh the probative value of the evidence
presented by the parties before the COMELEC.
The COMELEC, taking into consideration the very same pieces of evidence presently
before this Court, found that Ty was a resident of the Municipality of General Macarthur,
Eastern Samar, one year prior to the 14 May 2007 local elections. It is axiomatic that factual
findings of administrative agencies, such as the COMELEC, which have acquired expertise
in their field are binding and conclusive on the Court. An application for certiorari against
actions of the COMELEC is confined to instances of grave abuse of discretion amounting to
patent and substantial denial of due process, considering that the COMELEC is presumed
to be most competent in matters falling within its domain. 21
The Court even went further to say that the rule that factual findings of administrative bodies
will not be disturbed by courts of justice, except when there is absolutely no evidence or no
substantial evidence in support of such findings, should be applied with greater force when
it concerns the COMELEC, as the framers of the Constitution intended to place the
COMELEC—created and explicitly made independent by the Constitution itself—on a level
higher than statutory administrative organs. The factual finding of the COMELEC en banc is
therefore binding on the Court.22
The findings of facts of quasi-judicial agencies which have acquired expertise in the specific
matters entrusted to their jurisdiction are accorded by this Court not only respect but even
finality if they are supported by substantial evidence. Only substantial, not preponderance,
of evidence is necessary. Section 5, Rule 133 of the Rules of Court provides that in cases
filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is
supported by substantial evidence, or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion. 23
Josef Elvin Campos
The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC
First Division and en banc, respectively, were both supported by substantial evidence and
are, thus, binding and conclusive upon this Court.
Ty’s intent to establish a new domicile of choice in the Municipality of General Macarthur,
Eastern Samar, Philippines, became apparent when, immediately after reacquiring his
Philippine citizenship on 2 October 2005, he applied for a Philippine passport indicating in
his application that his residence in the Philippines was at A. Mabini St., Barangay 6,
Poblacion, General Macarthur, Eastern Samar. For the years 2006 and 2007, Ty voluntarily
submitted himself to the local tax jurisdiction of the Municipality of General Macarthur,
Eastern Samar, by paying community tax and securing CTCs from the said municipality
stating therein his address as A. Mabini St., Barangay 6, Poblacion, General Macarthur,
Eastern Samar. Thereafter, Ty applied for and was registered as a voter on 17 July 2006 in
Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar.
In addition, Ty has also been bodily present in the Municipality of General Macarthur,
Eastern Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over a
year prior to the 14 May 2007 local elections. Japzon maintains that Ty’s trips abroad during
said period, i.e., to Bangkok, Thailand (from 14 to 18 July 2006), and to the USA (from 31
October 2006 to 19 January 2007), indicate that Ty had no intention to permanently reside
in the Municipality of General Macarthur, Eastern Samar, Philippines. The COMELEC First
Division and en banc, as well as this Court, however, view these trips differently. The fact
that Ty did come back to the Municipality of General Macarthur, Eastern Samar, Philippines,
after said trips, is a further manifestation of his animus manendi and animus revertendi.
There is no basis for this Court to require Ty to stay in and never leave at all the
Municipality of General Macarthur, Eastern Samar, for the full one-year period prior to the
14 May 2007 local elections so that he could be considered a resident thereof. To the
contrary, the Court has previously ruled that absence from residence to pursue studies or
practice a profession or registration as a voter other than in the place where one is elected,
does not constitute loss of residence.24 The Court also notes, that even with his trips to
other countries, Ty was actually present in the Municipality of General Macarthur, Eastern
Samar, Philippines, for at least nine of the 12 months preceding the 14 May 2007 local
elections. Even if length of actual stay in a place is not necessarily determinative of the fact
of residence therein, it does strongly support and is only consistent with Ty’s avowed intent
in the instant case to establish residence/domicile in the Municipality of General Macarthur,
Eastern Samar.
Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality of
General Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year
residency requirement, so Ty could run as a mayoralty candidate in the 14 May 2007
elections. In Aquino v. COMELEC, 25 the Court did not find anything wrong in an individual
changing residences so he could run for an elective post, for as long as he is able to prove
with reasonable certainty that he has effected a change of residence for election law
purposes for the period required by law. As this Court already found in the present case, Ty
has proven by substantial evidence that he had established residence/domicile in the
Municipality of General Macarthur, Eastern Samar, by 4 May 2006, a little over a year prior
to the 14 May 2007 local elections, in which he ran as a candidate for the Office of the
Mayor and in which he garnered the most number of votes.
Finally, when the evidence of the alleged lack of residence qualification of a candidate for
an elective position is weak or inconclusive and it clearly appears that the purpose of the
law would not be thwarted by upholding the victor’s right to the office, the will of the
electorate should be respected. For the purpose of election laws is to give effect to, rather
than frustrate, the will of the voters. 26 To successfully challenge Ty’s disqualification, Japzon
must clearly demonstrate that Ty’s ineligibility is so patently antagonistic to constitutional
and legal principles that overriding such ineligibility and thereby giving effect to the apparent
will of the people would ultimately create greater prejudice to the very democratic
institutions and juristic traditions that our Constitution and laws so zealously protect and
promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to be
Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines.
WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
Sobejana-Condon v. Comelec (G.R. No. 198742, 10 August 2012)

G.R. No. 198742 August 10, 2012
Josef Elvin Campos
TEODORA SOBEJANA-CONDON, Petitioner,
vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA
P. PAGADUAN, Respondents.
SERENO,*
PERLAS-BERNABE, JJ *
DECISION
REYES, J.:
Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of
Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold any
elective public office.
The Case
At bar is a special civil action for certiorari 1 under Rule 64 of the Rules of Court seeking to
nullify Resolution2 dated September 6, 2011 of the Commission on Elections (COMELEC)
en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed the Order 3 dated
November 30, 2010 of COMELEC Second Division dismissing petitioner’s appeal; and (b)
affirmed the consolidated Decision4 dated October 22, 2010 of the Regional Trial Court
(RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora Sobejana-Condon
(petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union.
The Undisputed Facts
The petitioner is a natural-born Filipino citizen having been born of Filipino parents on
August 8, 1944. On December 13, 1984, she became a naturalized Australian citizen owing
to her marriage to a certain Kevin Thomas Condon.
On December 2, 2005, she filed an application to re-acquire Philippine citizenship before
the Philippine Embassy in Canberra, Australia pursuant to Section 3 of R.A. No. 9225
otherwise known as the "Citizenship Retention and Re-Acquisition Act of 2003." 5 The
application was approved and the petitioner took her oath of allegiance to the Republic of
the Philippines on December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of
Australian Citizenship before the Department of Immigration and Indigenous Affairs,
Canberra, Australia, which in turn issued the Order dated September 27, 2006 certifying
that she has ceased to be an Australian citizen. 6
The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She
lost in her bid. She again sought elective office during the May 10, 2010 elections this time
for the position of Vice-Mayor. She obtained the highest numbers of votes and was
proclaimed as the winning candidate. She took her oath of office on May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan 7 and Luis M.
Bautista,8 (private respondents) all registered voters of Caba, La Union, filed separate
petitions for quo warranto questioning the petitioner’s eligibility before the RTC. The
petitions similarly sought the petitioner’s disqualification from holding her elective post on
the ground that she is a dual citizen and that she failed to execute a "personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to
administer an oath" as imposed by Section 5(2) of R.A. No. 9225.
The petitioner denied being a dual citizen and averred that since September 27, 2006, she
ceased to be an Australian citizen. She claimed that the Declaration of Renunciation of
Australian Citizenship she executed in Australia sufficiently complied with Section 5(2), R.A.
No. 9225 and that her act of running for public office is a clear abandonment of her
Australian citizenship.
Ruling of the RTC
In its consolidated Decision dated October 22, 2010, the trial court held that the petitioner’s
failure to comply with Section 5(2) of R.A. No. 9225 rendered her ineligible to run and hold
public office. As admitted by the petitioner herself during trial, the personal declaration of
renunciation she filed in Australia was not under oath. The law clearly mandates that the
document containing the renunciation of foreign citizenship must be sworn before any public
officer authorized to administer oath. Consequently, the RTC’s decision disposed as
follows:
WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private
respondents] and AGAINST (petitioner):
1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to
hold the office of Vice-Mayor of Caba, La Union;
2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said
municipality; and
3) DECLARING the position of Vice-Mayor in said municipality vacant.
Josef Elvin Campos
SO ORDERED.9
Ruling of the COMELEC
The petitioner appealed to the COMELEC but the appeal was dismissed by the Second
Division in its Order10 dated November 30, 2010 for failure to pay the docket fees within the
prescribed period. On motion for reconsideration, the appeal was reinstated by the
COMELEC en banc in its Resolution 11 dated September 6, 2011. In the same issuance, the
substantive merits of the appeal were given due course. The COMELEC en banc concurred
with the findings and conclusions of the RTC; it also granted the Motion for Execution
Pending Appeal filed by the private respondents.
The decretal portion of the resolution reads:
WHEREFORE, premises considered the Commission RESOLVED as it
hereby RESOLVES as follows:
1. To DISMISS the instant appeal for lack of merit;
2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and
3. To GRANT the Motion for Execution filed on November 12, 2010.
SO ORDERED.12 (Emphasis supplied)
Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc.
The Petitioner’s Arguments
The petitioner contends that since she ceased to be an Australian citizen on September 27,
2006, she no longer held dual citizenship and was only a Filipino citizen when she filed her
certificate of candidacy as early as the 2007 elections. Hence, the "personal and sworn
renunciation of foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual
citizens seeking elective office does not apply to her.
She further argues that a sworn renunciation is a mere formal and not a mandatory
requirement. In support thereof, she cites portions of the Journal of the House of
Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House Bill
(H.B.) No. 4720, the precursor of R.A. No. 9225.
She claims that the private respondents are estopped from questioning her eligibility since
they failed to do so when she filed certificates of candidacy for the 2007 and 2010 elections.
Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the
substantive merits of her appeal instead of remanding the same to the COMELEC Second
Division for the continuation of the appeal proceedings; and (b) allow the execution pending
appeal of the RTC’s judgment.
The Issues
Posed for resolution are the following issues: I) Whether the COMELEC en banc may
resolve the merits of an appeal after ruling on its reinstatement; II) Whether the COMELEC
en banc may order the execution of a judgment rendered by a trial court in an election case;
III) Whether the private respondents are barred from questioning the qualifications of the
petitioner; and IV) For purposes of determining the petitioner’s eligibility to run for public
office, whether the "sworn renunciation of foreign citizenship" in Section 5(2) of R.A. No.
9225 is a mere pro-forma requirement.
I. An appeal may be simultaneously
reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.
The power to decide motions for reconsideration in election cases is arrogated unto the
COMELEC en banc by Section 3, Article IX-C of the Constitution, viz:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases, including
pre-proclamation controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc.
A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of
Procedure, to wit:
Any motion to reconsider a decision, resolution, order or ruling of a Division shall be
resolved by the Commission en banc except motions on interlocutory orders of the division
which shall be resolved by the division which issued the order.
Considering that the above cited provisos do not set any limits to the COMELEC en banc’s
prerogative in resolving a motion for reconsideration, there is nothing to prevent the body
from directly adjudicating the substantive merits of an appeal after ruling for its
reinstatement instead of remanding the same to the division that initially dismissed it.
Josef Elvin Campos
We thus see no impropriety much more grave abuse of discretion on the part of the
COMELEC en banc when it proceeded to decide the substantive merits of the petitioner’s
appeal after ruling for its reinstatement.
Further, records show that, in her motion for reconsideration before the COMELEC en banc,
the petitioner not only proffered arguments on the issue on docket fees but also on the
issue of her eligibility. She even filed a supplemental motion for reconsideration attaching
therewith supporting documents13 to her contention that she is no longer an Australian
citizen. The petitioner, after obtaining an unfavorable decision, cannot be permitted to
disavow the en banc’s exercise of discretion on the substantial merits of her appeal when
she herself invoked the same in the first place.
The fact that the COMELEC en banc had remanded similar appeals to the Division that
initially dismissed them cannot serve as a precedent to the disposition of the petitioner’s
appeal. A decision or resolution of any adjudicating body can be disposed in several ways.
To sustain petitioner’s argument would be virtually putting a straightjacket on the
COMELEC en banc’s adjudicatory powers.
More significantly, the remand of the appeal to the COMELEC Second Division would be
unnecessarily circuitous and repugnant to the rule on preferential disposition of quo
warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules of Procedure. 14
II. The COMELEC en banc has the
power to order discretionary
execution of judgment.
We cannot subscribe to petitioner’s submission that the COMELEC en banc has no power
to order the issuance of a writ of execution and that such function belongs only to the court
of origin.
There is no reason to dispute the COMELEC’s authority to order discretionary execution of
judgment in view of the fact that the suppletory application of the Rules of Court is expressly
sanctioned by Section 1, Rule 41 of the COMELEC Rules of Procedure. 15
Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by
an appellate court after the trial court has lost jurisdiction. In Batul v. Bayron, 16 we stressed
the import of the provision vis-à-vis election cases when we held that judgments in election
cases which may be executed pending appeal includes those decided by trial courts and
those rendered by the COMELEC whether in the exercise of its original or appellate
jurisdiction.
III. Private respondents are not
estopped from questioning
petitioner’s eligibility to hold public
office.
The fact that the petitioner’s qualifications were not questioned when she filed certificates of
candidacy for 2007 and 2010 elections cannot operate as an estoppel to the petition for quo
warranto before the RTC.
Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances
where a petition questioning the qualifications of a registered candidate to run for the office
for which his certificate of candidacy was filed can be raised, to wit:
(1) Before election, pursuant to Section 78 thereof which provides that:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. – A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later
than twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the election; and
(2) After election, pursuant to Section 253 thereof, viz:
Sec. 253. Petition for quo warranto. – Any voter contesting the election of any Member of
the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or
of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto
with the Commission within ten days after the proclamation of the results of the election.
(Emphasis ours)
Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the
petition within the twenty-five (25)-day period prescribed by Section 78 of the Omnibus
Election Code for whatever reasons, the elections laws do not leave him completely
helpless as he has another chance to raise the disqualification of the candidate by filing a
petition for quo warranto within ten (10) days from the proclamation of the results of the
election, as provided under Section 253 of the Omnibus Election Code. 17
Josef Elvin Campos
The above remedies were both available to the private respondents and their failure to
utilize Section 78 of the Omnibus Election Code cannot serve to bar them should they opt to
file, as they did so file, a quo warranto petition under Section 253.
IV. Petitioner is disqualified from
running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born
citizens who have lost their Philippine citizenship 18 by taking an oath of allegiance to the
Republic, thus:
Section 3. Retention of Philippine Citizenship. – Any provision of law to the contrary
notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are hereby
deemed to have re-acquired Philippine citizenship upon taking the following oath of
allegiance to the Republic:
"I, _____________________, solemnly swear (or affirm) that I will support
and defend the Constitution of the Republic of the Philippines and obey the
laws and legal orders promulgated by the duly constituted authorities of the
Philippines; and I hereby declare that I recognize and accept the supreme
authority of the Philippines and will maintain true faith and allegiance thereto;
and that I imposed this obligation upon myself voluntarily without mental
reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens
of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.
The oath is an abbreviated repatriation process that restores one’s Filipino citizenship and
all civil and political rights and obligations concomitant therewith, subject to certain
conditions imposed in Section 5, viz:
Sec. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of the Philippines and the
(1) Those intending to exercise their right of suffrage must meet the requirements under
Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The
Overseas Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualification for
holding such public office as required by the Constitution and existing laws and, at the time
of the filing of the certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance
to the Republic of the Philippines and its duly constituted authorities prior to their
assumption of office: Provided, That they renounce their oath of allegiance to the country
where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with the proper
authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot
be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they are
naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the armed forces
of the country which they are naturalized citizens. (Emphasis ours)
Under the provisions of the aforementioned law, the petitioner has validly re-acquired her
Filipino citizenship when she took an Oath of Allegiance to the Republic of the Philippines
on December 5, 2005. At that point, she held dual citizenship, i.e., Australian and Philippine.
On September 18, 2006, or a year before she initially sought elective public office, she filed
a renunciation of Australian citizenship in Canberra, Australia. Admittedly, however, the
same was not under oath contrary to the exact mandate of Section 5(2) that the
renunciation of foreign citizenship must be sworn before an officer authorized to administer
oath.
To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court
to interpret the "sworn renunciation of any and all foreign citizenship" in Section 5(2) to be a
mere pro forma requirement in conformity with the intent of the Legislature. She anchors her
Josef Elvin Campos
submission on the statement made by Representative Javier during the floor deliberations
on H.B. No. 4720, the precursor of R.A. No. 9225.
At the outset, it bears stressing that the Court’s duty to interpret the law according to its true
intent is exercised only when the law is ambiguous or of doubtful meaning. The first and
fundamental duty of the Court is to apply the law. As such, when the law is clear and free
from any doubt, there is no occasion for construction or interpretation; there is only room for
application.19 Section 5(2) of R.A. No. 9225 is one such instance.
Ambiguity is a condition of admitting two or more meanings, of being understood in more
than one way, or of referring to two or more things at the same time. For a statute to be
considered ambiguous, it must admit of two or more possible meanings. 20
The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC, 21 we
declared its categorical and single meaning: a Filipino American or any dual citizen cannot
run for any elective public position in the Philippines unless he or she personally swears to
a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We
also expounded on the form of the renunciation and held that to be valid, the renunciation
must be contained in an affidavit duly executed before an officer of the law who is
authorized to administer an oath stating in clear and unequivocal terms that affiant is
renouncing all foreign citizenship.
The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos re-
acquiring or retaining their Philippine citizenship under R.A. No. 9225 must explicitly
renounce their foreign citizenship if they wish to run for elective posts in the Philippines,
thus:
The law categorically requires persons seeking elective public office, who either retained
their Philippine citizenship or those who reacquired it, to make a personal and sworn
renunciation of any and all foreign citizenship before a public officer authorized to
administer an oath simultaneous with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have
been naturalized as citizens of a foreign country, but who reacquired or retained their
Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No.
9225, and (2) for those seeking elective public offices in the Philippines, to additionally
execute a personal and sworn renunciation of any and all foreign citizenship before an
authorized public officer prior or simultaneous to the filing of their certificates of candidacy,
to qualify as candidates in Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn
renunciation of any and all foreign citizenship) requires of the Filipinos availing themselves
of the benefits under the said Act to accomplish an undertaking other than that which they
have presumably complied with under Section 3 thereof (oath of allegiance to the Republic
of the Philippines). This is made clear in the discussion of the Bicameral Conference
Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held
on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman
Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative
Exequiel Javier that the oath of allegiance is different from the renunciation of foreign
citizenship;
xxxx
The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine
citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of
the Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for
elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos
must only have one citizenship, namely, Philippine citizenship. 23 (Citation omitted and italics
and underlining ours)
Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to be disqualified from
running for the position of vice-mayor for his failure to make a personal and sworn
renunciation of his American citizenship.
We find no reason to depart from the mandatory nature infused by the above rulings to the
phrase "sworn renunciation". The language of the provision is plain and unambiguous. It
expresses a single, definite, and sensible meaning and must thus be read literally. 25 The
foreign citizenship must be formally rejected through an affidavit duly sworn before an
officer authorized to administer oath.
It is conclusively presumed to be the meaning that the Legislature has intended to
convey.26 Even a resort to the Journal of the House of Representatives invoked by the
petitioner leads to the same inference, viz:
INTERPELLATION OF REP. JAVIER
Josef Elvin Campos
Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-
born Filipinos and not to naturalized Filipinos.
Rep. Libanan replied in the affirmative.
Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born
Filipinos who have dual citizenship shall continue to enjoy full civil and political rights. This
being the case, he sought clarification as to whether they can indeed run for public office
provided that they renounce their foreign citizenship.
Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a
personal and sworn renunciation of foreign citizenship before any authorized public officer.
Rep. Javier sought further clarification on this matter, citing that while the Bill provides them
with full civil and political rights as Filipino citizens, the measure also discriminates against
them since they are required to make a sworn renunciation of their other foreign citizenship
if and when they run for public office. He thereafter proposed to delete this particular
provision.
In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding
any issues that might be raised pertaining to the citizenship of any candidate. He
subsequently cited the case of Afroyim vs. Rusk, wherein the United States
considered a naturalized American still as an American citizen even when he cast his
vote in Israel during one of its elections.
Rep. Javier however pointed out that the matter of voting is different because in voting, one
is not required to renounce his foreign citizenship. He pointed out that under the Bill,
Filipinos who run for public office must renounce their foreign citizenship. He pointed out
further that this is a contradiction in the Bill.
Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign
citizenship and are now entitled to reacquire their Filipino citizenship will be considered as
natural-born citizens. As such, he likewise inquired whether they will also be considered
qualified to run for the highest elective positions in the country.
Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a
sworn renunciation of their foreign citizenship and that they comply with the residency and
registration requirements as provided for in the Constitution.
Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those
who are citizens at the time of birth without having to perform an act to complete or perfect
his/her citizenship.
Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of
CA No. 63. The repeal, he said, would help Filipino citizens who acquired foreign citizenship
to retain their citizenship. With regard then to Section 5 of the Bill, he explained that the
Committee had decided to include this provision because Section 18, Article XI of the
Constitution provides for the accountability of public officers.
In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign
citizenship will only become a pro forma requirement.
On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens
who became foreign citizens and who have reacquired their Filipino citizenship under the
Bill will be considered as natural-born citizens, and therefore qualified to run for the
presidency, the vice-presidency or for a seat in Congress. He also agreed with the
observation of Rep. Javier that a natural-born citizen is one who is a citizen of the country at
the time of birth. He also explained that the Bill will, in effect, return to a Filipino citizen who
has acquired foreign citizenship, the status of being a natural-born citizen effective at the
time he lost his Filipino citizenship.
As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized
Filipino citizens and Filipino citizens by election who are all disqualified to run for certain
public offices. He then suggested that the Bill be amended by not considering as natural-
born citizens those Filipinos who had renounced their Filipino citizenship and acquired
foreign citizenship. He said that they should be considered as repatriated citizens.
In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latter’s
comments on the matter. He however stressed that after a lengthy deliberation on the
subject, the Committees on Justice, and Foreign Affairs had decided to revert back to the
status of being natural-born citizens those natural-born Filipino citizens who had acquired
foreign citizenship but now wished to reacquire their Filipino citizenship.
Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her
marriage to a foreigner can regain her repatriated Filipino citizenship, upon the death of her
husband, by simply taking her oath before the Department of Justice (DOJ).
Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino
citizens who are not considered natural-born. He reiterated that natural-born Filipino citizens
Josef Elvin Campos
who had renounced their citizenship by pledging allegiance to another sovereignty should
not be allowed to revert back to their status of being natural-born citizens once they decide
to regain their Filipino citizenship. He underscored that this will in a way allow such Filipinos
to enjoy dual citizenship.
On whether the Sponsors will agree to an amendment incorporating the position of Rep.
Javier, Rep. Libanan stated that this will defeat the purpose of the Bill.
Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired
foreign citizenships and later decided to regain their Filipino citizenship, will be considered
as repatriated citizens.
Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled
that only naturalized Filipino citizens are not considered as natural-born citizens.
In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are
Filipino citizens under the 1935 Constitution and who elected Filipino citizenship upon
reaching the age of maturity, are not deemed as natural-born citizens.
In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the
recovery of one’s original nationality and only naturalized citizens are not considered as
natural-born citizens.
On whether the Sponsors would agree to not giving back the status of being natural-born
citizens to natural-born Filipino citizens who acquired foreign citizenship, Rep. Libanan
remarked that the Body in plenary session will decide on the matter. 27
The petitioner obviously espouses an isolated reading of Representative Javier’s statement;
she conveniently disregards the preceding and succeeding discussions in the records.
The above-quoted excerpts of the legislative record show that Representative Javier’s
statement ought to be understood within the context of the issue then being discussed, that
is – whether former natural-born citizens who re-acquire their Filipino citizenship under the
proposed law will revert to their original status as natural-born citizens and thus be qualified
to run for government positions reserved only to natural-born Filipinos, i.e. President, Vice-
President and Members of the Congress.
It was Representative Javier’s position that they should be considered as repatriated
Filipinos and not as natural-born citizens since they will have to execute a personal and
sworn renunciation of foreign citizenship. Natural-born citizens are those who need not
perform an act to perfect their citizenship. Representative Libanan, however, maintained
that they will revert to their original status as natural-born citizens. To reconcile the
renunciation imposed by Section 5(2) with the principle that natural-born citizens are those
who need not perform any act to perfect their citizenship, Representative Javier suggested
that the sworn renunciation of foreign citizenship be considered as a mere pro forma
requirement.
Petitioner’s argument, therefore, loses its point. The "sworn renunciation of foreign
citizenship" must be deemed a formal requirement only with respect to the re-acquisition of
one’s status as a natural-born Filipino so as to override the effect of the principle that
natural-born citizens need not perform any act to perfect their citizenship. Never was it
mentioned or even alluded to that, as the petitioner wants this Court to believe, those who
re-acquire their Filipino citizenship and thereafter run for public office has the option of
executing an unsworn affidavit of renunciation.
It is also palpable in the above records that Section 5 was intended to complement Section
18, Article XI of the Constitution on public officers’ primary accountability of allegiance and
loyalty, which provides:
Sec. 18. – Public officers and employees owe the State and this Constitution allegiance at
all times and any public officer or employee who seeks to change his citizenship or acquire
the status of an immigrant of another country during his tenure shall be dealt with by law.
An oath is a solemn declaration, accompanied by a swearing to God or a revered person or
thing, that one’s statement is true or that one will be bound to a promise. The person
making the oath implicitly invites punishment if the statement is untrue or the promise is
broken. The legal effect of an oath is to subject the person to penalties for perjury if the
testimony is false.28
Indeed, the solemn promise, and the risk of punishment attached to an oath ensures
truthfulness to the prospective public officer’s abandonment of his adopted state and
promise of absolute allegiance and loyalty to the Republic of the Philippines.
To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial
purposes; it would also accommodate a mere qualified or temporary allegiance from
government officers when the Constitution and the legislature clearly demand otherwise.
Petitioner contends that the Australian Citizenship Act of 1948, under which she is already
deemed to have lost her citizenship, is entitled to judicial notice. We disagree.
Josef Elvin Campos
Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged
and proven.29 To prove a foreign law, the party invoking it must present a copy thereof and
comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads:
Sec. 24. Proof of official record. – The record of public documents referred to in paragraph
(a) of Section 19, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of the embassy or legation,
consul general, consul, vice- consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office. (Emphasis ours)
Sec. 25. What attestation of copy must state. – Whenever a copy of a document or record is
attested for the purpose of the evidence, the attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if he be
the clerk of a court having a seal, under the seal of such court.
The Court has admitted certain exceptions to the above rules and held that the existence of
a foreign law may also be established through: (1) a testimony under oath of an expert
witness such as an attorney-at-law in the country where the foreign law operates wherein
he quotes verbatim a section of the law and states that the same was in force at the time
material to the facts at hand; and (2) likewise, in several naturalization cases, it was held by
the Court that evidence of the law of a foreign country on reciprocity regarding the
acquisition of citizenship, although not meeting the prescribed rule of practice, may be
allowed and used as basis for favorable action, if, in the light of all the circumstances, the
Court is "satisfied of the authenticity of the written proof offered." Thus, in a number of
decisions, mere authentication of the Chinese Naturalization Law by the Chinese Consulate
General of Manila was held to be a competent proof of that law. 30
The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the
above methods. As uniformly observed by the RTC and COMELEC, the petitioner failed to
show proof of the existence of the law during trial. Also, the letter issued by the Australian
government showing that petitioner already renounced her Australian citizenship was
unauthenticated hence, the courts a quo acted judiciously in disregarding the same.
We are bound to arrive at a similar conclusion even if we were to admit as competent
evidence the said letter in view of the photocopy of a Certificate of Authentication issued by
Consular Section of the Philippine Embassy in Canberra, Australia attached to the
petitioner’s motion for reconsideration.
We have stressed in Advocates and Adherents of Social Justice for School Teachers and
Allied Workers (AASJS) Member v. Datumanong31 that the framers of R.A. No. 9225 did not
intend the law to concern itself with the actual status of the other citizenship.
This Court as the government branch tasked to apply the enactments of the legislature must
do so conformably with the wisdom of the latter sans the interference of any foreign law. If
we were to read the Australian Citizen Act of 1948 into the application and operation of R.A.
No. 9225, we would be applying not what our legislative department has deemed wise to
require. To do so would be a brazen encroachment upon the sovereign will and power of
the people of this Republic.32
The petitioner’s act of running for public office does not suffice to serve as an effective
renunciation of her Australian citizenship. While this Court has previously declared that the
filing by a person with dual citizenship of a certificate of candidacy is already considered a
renunciation of foreign citizenship,33 such ruling was already adjudged superseded by the
enactment of R.A. No. 9225 on August 29, 2003 which provides for the additional condition
of a personal and sworn renunciation of foreign citizenship. 34
The fact that petitioner won the elections can not cure the defect of her candidacy.
Garnering the most number of votes does not validate the election of a disqualified
candidate because the application of the constitutional and statutory provisions on
disqualification is not a matter of popularity. 35
In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their
citizenship and seek elective office, to execute a personal and sworn renunciation of any
and all foreign citizenships before an authorized public officer prior to or simultaneous to the
filing of their certificates of candidacy, to qualify as candidates in Philippine elections. 36 The
rule applies to all those who have re-acquired their Filipino citizenship, like petitioner,
without regard as to whether they are still dual citizens or not. It is a pre-requisite imposed
for the exercise of the right to run for public office.
Josef Elvin Campos
Stated differently, it is an additional qualification for elective office specific only to Filipino
citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative
act that restores their right to run for public office. The petitioner's failure to comply therewith
in accordance with the exact tenor of the law, rendered ineffectual the Declaration of
Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she
is yet to regain her political right to seek elective office. Unless she executes a sworn
renunciation of her Australian citizenship, she is ineligible to run for and hold any elective
office in the Philippines.
WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The
Resolution dated September 6, 2011 of the Commission on Elections en bane in EAC (AE)
No. A-44-2010 is AFFIRMED in toto.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
Corodora v. Comelec (G.R. No. 176947, 19 February 2008)

G.R. No. 176947 February 19, 2009
GAUDENCIO M. CORDORA, Petitioner,
vs.
COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and mandamus, with prayer for the issuance of a temporary
restraining order under Rule 65 of the 1997 Rules of Civil Procedure.
In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S. Tambunting
(Tambunting) of an election offense for violating Section 74 in relation to Section 262 of the
Omnibus Election Code. The Commission on Elections’ (COMELEC) En Banc dismissed
Cordora’s complaint in a Resolution1 dated 18 August 2006. The present petition seeks to
reverse the 18 August 2006 Resolution as well as the Resolution 2 dated 20 February 2007
of the COMELEC En Banc which denied Cordora’s motion for reconsideration.
The Facts
In his complaint affidavit filed before the COMELEC Law Department, Cordora asserted that
Tambunting made false assertions in the following items:
That Annex A [Tambunting’s Certificate of Candidacy for the 2001 elections] and Annex B
[Tambunting’s Certificate of Candidacy for the 2004 elections] state, among others, as
follows, particularly Nos. 6, 9 and 12 thereof:
1. No. 6 – I am a Natural Born/Filipino Citizen
2. No. 9 – No. of years of Residence before May 14, 2001.
36 in the Philippines and 25 in the Constituency where I seek to be elected;
3. No. 12 – I am ELIGIBLE for the office I seek to be elected. 3 (Boldface and
capitalization in the original)
Cordora stated that Tambunting was not eligible to run for local public office because
Tambunting lacked the required citizenship and residency requirements.
To disprove Tambunting’s claim of being a natural-born Filipino citizen, Cordora presented
a certification from the Bureau of Immigration which stated that, in two instances,
Tambunting claimed that he is an American: upon arrival in the Philippines on 16 December
2000 and upon departure from the Philippines on 17 June 2001. According to Cordora,
these travel dates confirmed that Tambunting acquired American citizenship through
naturalization in Honolulu, Hawaii on 2 December 2000. Cordora concluded:
That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74 (OEC): [sic] Re:
CONTENTS OF CERTIFICATE OF CANDIDACY: which requires the declarant/affiant to
state, among others, under oath, that he is a Filipino (No. 6), No.
9- residence requirement which he lost when [he was] naturalized as an American
Citizen on December 2, 2000 at [sic] Honolulu, Hawaii, knowingly and
willfully affirmed and reiterated that he possesses the above basic requirements under
No. 12 – that he is indeed eligible for the office to which he seeks to be elected, when
in truth and in fact, the contrary is indubitably established by his own statements before
the Philippine Bureau of Immigration x x x. 4 (Emphases in the original)
Tambunting, on the other hand, maintained that he did not make any misrepresentation in
his certificates of candidacy. To refute Cordora’s claim that Tambunting is not a natural-born
Filipino, Tambunting presented a copy of his birth certificate which showed that he was born
of a Filipino mother and an American father. Tambunting further denied that he was
Josef Elvin Campos
naturalized as an American citizen. The certificate of citizenship conferred by the US
government after Tambunting’s father petitioned him through INS Form I-130 (Petition for
Relative) merely confirmed Tambunting’s citizenship which he acquired at birth.
Tambunting’s possession of an American passport did not mean that Tambunting is not a
Filipino citizen. Tambunting also took an oath of allegiance on 18 November 2003 pursuant
to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention and Reacquisition
Act of 2003.
Tambunting further stated that he has resided in the Philippines since birth. Tambunting has
imbibed the Filipino culture, has spoken the Filipino language, and has been educated in
Filipino schools. Tambunting maintained that proof of his loyalty and devotion to the
Philippines was shown by his service as councilor of Parañaque.
To refute Cordora’s claim that the number of years of residency stated in Tambunting’s
certificates of candidacy is false because Tambunting lost his residency because of his
naturalization as an American citizen, Tambunting contended that the residency
requirement is not the same as citizenship.
The Ruling of the COMELEC Law Department
The COMELEC Law Department recommended the dismissal of Cordora’s complaint
against Tambunting because Cordora failed to substantiate his charges against
Tambunting. Cordora’s reliance on the certification of the Bureau of Immigration that
Tambunting traveled on an American passport is not sufficient to prove that Tambunting is
an American citizen.
The Ruling of the COMELEC En Banc
The COMELEC En Banc affirmed the findings and the resolution of the COMELEC Law
Department. The COMELEC En Banc was convinced that Cordora failed to support his
accusation against Tambunting by sufficient and convincing evidence.
The dispositive portion of the COMELEC En Banc’s Resolution reads as follows:
WHEREFORE, premises considered, the instant complaint is hereby DISMISSED for
insufficiency of evidence to establish probable cause.
SO ORDERED.5
Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate opinion
which concurred with the findings of the En Banc Resolution. Commissioner Sarmiento
pointed out that Tambunting could be considered a dual citizen. Moreover, Tambunting
effectively renounced his American citizenship when he filed his certificates of candidacy in
2001 and 2004 and ran for public office.
Cordora filed a motion for reconsideration which raised the same grounds and the same
arguments in his complaint. In its Resolution promulgated on 20 February 2007, the
COMELEC En Banc dismissed Cordora’s motion for reconsideration for lack of merit.
The Issue
Cordora submits that the COMELEC acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when it declared that there is no sufficient evidence to support
probable cause that may warrant the prosecution of Tambunting for an election offense.
Cordora’s petition is not an action to disqualify Tambunting because of Tambunting’s failure
to meet citizenship and residency requirements. Neither is the present petition an action to
declare Tambunting a non-Filipino and a non-resident. The present petition seeks to
prosecute Tambunting for knowingly making untruthful statements in his certificates of
candidacy.
The petition has no merit. We affirm the ruling of the COMELEC En Banc.
Whether there is Probable Cause to Hold Tambunting for Trial for Having Committed
an Election Offense
There was no grave abuse of discretion in the COMELEC En Banc’s ruling that there is no
sufficient and convincing evidence to support a finding of probable cause to hold
Tambunting for trial for violation of Section 74 in relation to Section 262 of the Omnibus
Election Code.
Probable cause constitutes those facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed. Determining
probable cause is an intellectual activity premised on the prior physical presentation or
submission of documentary or testimonial proofs either confirming, negating or qualifying
the allegations in the complaint.6
Section 74 of the Omnibus Election Code reads as follows:
Contents of certificate of candidacy. — The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is
eligible for said office; x x x the political party to which he belongs; civil status; his date of
Josef Elvin Campos
birth; residence; his post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders and
decrees promulgated by the duly constituted authorities; that he is not a permanent resident
or immigrant to a foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge.
xxx
The person filing a certificate of candidacy shall also affix his latest photograph, passport
size; a statement in duplicate containing his bio-data and program of government not
exceeding one hundred words, if he so desires.
Section 262 of the Omnibus Election Code, on the other hand, provides that violation of
Section 74, among other sections in the Code, shall constitute an election offense.
Tambunting’s Dual Citizenship
Tambunting does not deny that he is born of a Filipino mother and an American father.
Neither does he deny that he underwent the process involved in INS Form I-130 (Petition
for Relative) because of his father’s citizenship. Tambunting claims that because of his
parents’ differing citizenships, he is both Filipino and American by birth. Cordora, on the
other hand, insists that Tambunting is a naturalized American citizen.
We agree with Commissioner Sarmiento’s observation that Tambunting possesses dual
citizenship. Because of the circumstances of his birth, it was no longer necessary for
Tambunting to undergo the naturalization process to acquire American citizenship. The
process involved in INS Form I-130 only served to confirm the American citizenship which
Tambunting acquired at birth. The certification from the Bureau of Immigration which
Cordora presented contained two trips where Tambunting claimed that he is an American.
However, the same certification showed nine other trips where Tambunting claimed that he
is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate
of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did
not disqualify him from running for public office. 7
Requirements for dual citizens from birth who desire to run for public office
We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we
ruled that dual citizenship is not a ground for disqualification from running for any elective
local position.
To begin with, dual citizenship is different from dual allegiance. The former arises when, as
a result of the concurrent application of the different laws of two or more states, a person is
simultaneously considered a national by the said states. For instance, such a situation may
arise when a person whose parents are citizens of a state which adheres to the principle
of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso
facto and without any voluntary act on his part, is concurrently considered a citizen of both
states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the
following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws
of their fathers’ country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latter’s country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without performing
any act, be also a citizen of another state; but the above cases are clearly possible given
the constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously
owes, by some positive act, loyalty to two or more states. While dual citizenship is
involuntary, dual allegiance is the result of an individual’s volition.
xxx
[I]n including §5 in Article IV on citizenship, the concern of the Constitutional Commission
was not with dual citizens per se but with naturalized citizens who maintain their allegiance
to their countries of origin even after their naturalization. Hence, the phrase "dual
citizenship" in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as
referring to "dual allegiance." Consequently, persons with mere dual citizenship do not
fall under this disqualification. Unlike those with dual allegiance, who must,
therefore, be subject to strict process with respect to the termination of their status,
for candidates with dual citizenship, it should suffice if, upon the filing of their
Josef Elvin Campos
certificates of candidacy, they elect Philippine citizenship to terminate their status as
persons with dual citizenship considering that their condition is the unavoidable
consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the
most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship
is just a reality imposed on us because we have no control of the laws on citizenship of
other countries. We recognize a child of a Filipino mother. But whether or not she is
considered a citizen of another country is something completely beyond our control."
By electing Philippine citizenship, such candidates at the same time forswear allegiance to
the other country of which they are also citizens and thereby terminate their status as dual
citizens. It may be that, from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship. That is of no moment as the
following discussion on §40(d) between Senators Enrile and Pimentel clearly shows:
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any
person with dual citizenship" is disqualified to run for any elective local position. Under the
present Constitution, Mr. President, someone whose mother is a citizen of the Philippines
but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement
that such a natural-born citizen, upon reaching the age of majority, must elect or give up
Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the country
of his or her father and one belonging to the Republic of the Philippines, may such a
situation disqualify the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when
he would want to run for public office, he has to repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin
or the country of the father claims that person, nevertheless, as a citizen,? No one can
renounce. There are such countries in the world.1avvphi1
SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in
effect, be an election for him of his desire to be considered a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an
election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at
birth, a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman’s
example, if he does not renounce his other citizenship, then he is opening himself to
question. So, if he is really interested to run, the first thing he should do is to say in the
Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship."
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President.
He will always have one citizenship, and that is the citizenship invested upon him or her in
the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove
that he also acknowledges other citizenships, then he will probably fall under this
disqualification.8 (Emphasis supplied)
We have to consider the present case in consonance with our rulings in Mercado v.
Manzano,9 Valles v. COMELEC,10 and AASJS v.
11
Datumanong. Mercado and Valles involve similar operative facts as the present case.
Manzano and Valles, like Tambunting, possessed dual citizenship by the circumstances of
their birth. Manzano was born to Filipino parents in the United States which follows the
doctrine of jus soli. Valles was born to an Australian mother and a Filipino father in
Australia. Our rulings in Manzano and Valles stated that dual citizenship is different from
dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual
citizenship is involuntary and arises when, as a result of the concurrent application of the
different laws of two or more states, a person is simultaneously considered a national by the
said states. Thus, like any other natural-born Filipino, it is enough for a person with dual
citizenship who seeks public office to file his certificate of candidacy and swear to the oath
of allegiance contained therein. Dual allegiance, on the other hand, is brought about by the
individual’s active participation in the naturalization process. AASJS states that, under R.A.
No. 9225, a Filipino who becomes a naturalized citizen of another country is allowed to
retain his Filipino citizenship by swearing to the supreme authority of the Republic of the
Philippines. The act of taking an oath of allegiance is an implicit renunciation of a
naturalized citizen’s foreign citizenship.
R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted
years after the promulgation of Manzano and Valles. The oath found in Section 3 of R.A.
No. 9225 reads as follows:
Josef Elvin Campos
I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of
the Republic of the Philippines and obey the laws and legal orders promulgated by the duly
constituted authorities of the Philippines; and I hereby declare that I recognize and accept
the supreme authority of the Philippines and will maintain true faith and allegiance thereto;
and that I impose this obligation upon myself voluntarily without mental reservation or
purpose of evasion.
In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual
citizenship per se, but with the status of naturalized citizens who maintain their allegiance to
their countries of origin even after their naturalization. 12 Section 5(3) of R.A. No. 9225 states
that naturalized citizens who reacquire Filipino citizenship and desire to run for elective
public office in the Philippines shall "meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of filing the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign citizenship before
any public officer authorized to administer an oath" aside from the oath of allegiance
prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of
Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our
recent rulings in Jacot v. Dal and COMELEC,13 Velasco v. COMELEC,14 and Japzon v.
COMELEC,15 all of which involve natural-born Filipinos who later became naturalized
citizens of another country and thereafter ran for elective office in the Philippines. In the
present case, Tambunting, a natural-born Filipino, did not subsequently become a
naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not
apply to him.
Tambunting’s residency
Cordora concluded that Tambunting failed to meet the residency requirement because of
Tambunting’s naturalization as an American. Cordora’s reasoning fails because Tambunting
is not a naturalized American. Moreover, residency, for the purpose of election laws,
includes the twin elements of the fact of residing in a fixed place and the intention to return
there permanently,16 and is not dependent upon citizenship.
In view of the above, we hold that Cordora failed to establish that Tambunting indeed
willfully made false entries in his certificates of candidacy. On the contrary, Tambunting
sufficiently proved his innocence of the charge filed against him. Tambunting is eligible for
the office which he sought to be elected and fulfilled the citizenship and residency
requirements prescribed by law.
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the Commission
on Elections En Banc dated 18 August 2006 and 20 February 2007 in EO Case No. 05-17.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
2. Manner and Date of Election

Kida v. Senate of the Philippines (supra)
3. Term of Office
Abundo v. Commission on Elections (G.R. No. 201716, 08 January 2013)
G.R. No. 201716 January 8, 2013
MAYOR ABELARDO ABUNDO, SR., Petitioner,
vs.
COMMISSION ON ELECTIONS and ERNESTO R. VEGA, Respondents.
DECISION
VELASCO, JR., J.:
The Case
In this Petition for Certiorari under Rule 65, petitioner Abelardo Abundo, Sr. (Abundo)
assails and seeks to nullify (1) the February 8, 2012 Resolution 1 of the Second Division,
Commission on Elections (COMELEC), in EAC (AE) No. A-25-2010 and (2) the May 10,
2012 Resolution2 of the COMELEC en banc affirming that division’s disposition. The
assailed issuances, in turn, affirmed the Decision of the Regional Trial Court (RTC) of Virac,
Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55 declaring Abundo
as ineligible, under the three-term limit rule, to run in the 2010 elections for the position of,
and necessarily to sit as, Mayor of Viga, Catanduanes.
The antecedent facts are undisputed.
For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010 national
and local elections, Abundo vied for the position of municipal mayor of Viga, Catanduanes.
In both the 2001 and 2007 runs, he emerged and was proclaimed as the winning mayoralty
Josef Elvin Campos
candidate and accordingly served the corresponding terms as mayor. In the 2004 electoral
derby, however, the Viga municipal board of canvassers initially proclaimed as winner one
Jose Torres (Torres), who, in due time, performed the functions of the office of mayor.
Abundo protested Torres’ election and proclamation. Abundo was eventually declared the
winner of the 2004 mayoralty electoral contest, paving the way for his assumption of office
starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007, or for a period
of a little over one year and one month.
Then came the May 10, 2010 elections where Abundo and Torres again opposed each
other. When Abundo filed his certificate of candidacy 3 for the mayoralty seat relative to this
electoral contest, Torres lost no time in seeking the former’s disqualification to run, the
corresponding petition,4 docketed as SPA Case No. 10-128 (DC), predicated on the three-
consecutive term limit rule. On June 16, 2010, the COMELEC First Division issued a
Resolution5 finding for Abundo, who in the meantime bested Torres by 219 votes 6 and was
accordingly proclaimed 2010 mayor-elect of Viga, Catanduanes.
Meanwhile, on May 21, 2010, or before the COMELEC could resolve the adverted
disqualification case Torres initiated against Abundo, herein private respondent Ernesto R.
Vega (Vega) commenced a quo warranto 7 action before the RTC-Br. 43 in Virac,
Catanduanes, docketed as Election Case No. 55, to unseat Abundo on essentially the same
grounds Torres raised in his petition to disqualify.
The Ruling of the Regional Trial Court
By Decision8 of August 9, 2010 in Election Case No. 55, the RTC declared Abundo
ineligible to serve as municipal mayor, disposing as follows:
WHEREFORE, Decision is, hereby, rendered GRANTING the petition and declaring
Abelardo Abundo, Sr. ineligible to serve as municipal mayor of Viga, Catanduanes.
SO ORDERED.9
In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC, 10 found Abundo to have
already served three consecutive mayoralty terms, to wit, 2001-2004, 2004-2007 and 2007-
2010, and, hence, disqualified for another, i.e., fourth, consecutive term. Abundo, the RTC
noted, had been declared winner in the aforesaid 2004 elections consequent to his protest
and occupied the position of and actually served as Viga mayor for over a year of the
remaining term, i.e., from May 9, 2006 to June 30, 2007, to be exact. To the RTC, the year
and a month service constitutes a complete and full service of Abundo’s second term as
mayor.
Therefrom, Abundo appealed to the COMELEC, his recourse docketed as EAC (AE) No. A-
25-2010.
The Ruling of the COMELEC
On February 8, 2012, in EAC (AE) No. A-25-2010, the COMELEC’s Second Division
rendered the first assailed Resolution, the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court Branch 73,
Virac, Catanduanes is AFFIRMED and the appeal is DISMISSED for lack of merit.
SO ORDERED.11
Just like the RTC, the COMELEC’s Second Division ruled against Abundo on the strength
of Aldovino, Jr. and held that service of the unexpired portion of a term by a protestant who
is declared winner in an election protest is considered as service for one full term within the
contemplation of the three-term limit rule.
In time, Abundo sought but was denied reconsideration by the COMELEC en banc per its
equally assailed Resolution of May 10, 2012. The fallo of the COMELEC en banc’s
Resolution reads as follows:
WHEREFORE, premises considered, the motion for reconsideration is DENIED for lack of
merit. The Resolution of the Commission (Second Division) is hereby AFFIRMED.
SO ORDERED.12
In affirming the Resolution of its Second Division, the COMELEC en banc held in essence
the following: first, there was no involuntary interruption of Abundo’s 2004-2007 term
service which would be an exception to the three-term limit rule as he is considered never to
have lost title to the disputed office after he won in his election protest; and second, what
the Constitution prohibits is for an elective official to be in office for the same position for
more than three consecutive terms and not to the service of the term.
Hence, the instant petition with prayer for the issuance of a temporary restraining order
(TRO) and/or preliminary injunction.
Intervening Events
In the meantime, following the issuance by the COMELEC of its May 10, 2012 Resolution
denying Abundo’s motion for reconsideration, the following events transpired:
Josef Elvin Campos
1. On June 20, 2012, the COMELEC issued an Order 13 declaring its May 10, 2012
Resolution final and executory. The following day, June 21, 2012, the COMELEC
issued an Entry of Judgment.14
2. On June 25, 2012, Vega filed a Motion for Execution 15 with the RTC-Br. 43 in
Virac, Catanduanes.
3. On June 27, 2012, the COMELEC, acting on Vega’s counsel’s motion 16 filed a day
earlier, issued an Order17 directing the bailiff of ECAD (COMELEC) to personally
deliver the entire records to said RTC.
On June 29, 2012, the COMELEC ECAD Bailiff personally delivered the entire
records of the instant case to, and were duly received by, the clerk of court of RTC-
Br. 43.
4. On June 29, 2012, or on the same day of its receipt of the case records, the RTC-
Br. 43 in Virac, Catanduanes granted Vega’s Motion for Execution through an
Order18 of even date. And a Writ of Execution19 was issued on the same day.
5. On July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of Execution and served
the same at the office of Mayor Abundo on the same day via substituted service.
6. On July 3, 2012, the Court issued a TRO 20 enjoining the enforcement of the
assailed COMELEC Resolutions.
7. On July 4, 2012, Vega received the Court’s July 3, 2012 Resolution 21 and a copy
of the TRO. On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor
Cesar O. Cervantes of Viga, Catanduanes took their oaths of office 22 as mayor and
vice-mayor of Viga, Catanduanes, respectively.
8. On July 5, 2012, Vega received a copy of Abundo’s Seventh (7th) Most Extremely
Urgent Manifestation and Motion 23 dated June 28, 2012 praying for the issuance of a
TRO and/or status quo ante Order. On the same day, Vice-Mayor Emeterio M. Tarin
and First Councilor Cesar O. Cervantes––who had taken their oaths of office the day
before—assumed the posts of mayor and vice-mayor of Viga, Catanduanes. 24
9. On July 6, 2012, Vega interposed a Motion (To Admit Attached
Manifestation)25 and Manifestation with Leave to Admit 26 dated July 5, 2012 stating
that the TRO thus issued by the Court has become functus officio owing to the
execution of the RTC’s Decision in Election Case No. 55.
10. On July 10, 2012, Vega filed his Comment/Opposition with Leave to the
Petitioner’s Prayer for the Issuance of a Status Quo Ante Order 27 reiterating the
argument that since Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O.
Cervantes already assumed the posts of Mayor and Vice-Mayor of Viga,
Catanduanes, then a Status Quo Ante Order would serve no purpose.
11. On July 12, 2012, Abundo filed his Most Urgent Manifestation and Motion to
Convert the July 3, 2012 TRO into a Status Quo Ante Order (In View of the
Unreasonable and Inappropriate Progression of Events). 28
It is upon the foregoing backdrop of events that Abundo was dislodged from his post as
incumbent mayor of Viga, Catanduanes. To be sure, the speed which characterized
Abundo’s ouster despite the supervening issuance by the Court of a TRO on July 3, 2012 is
not lost on the Court. While it is not clear whether Vice-Mayor Tarin and First Councilor
Cervantes knew of or put on notice about the TRO either before they took their oaths of
office on July 4, 2012 or before assuming the posts of mayor and vice-mayor on July 5,
2012, the confluence of events following the issuance of the assailed COMELEC en banc
irresistibly tends to show that the TRO––issued as it were to maintain the status quo, thus
averting the premature ouster of Abundo pending this Court’s resolution of his appeal––
appears to have been trivialized.
On September 11, 2012, Vega filed his Comment on Abundo’s petition, followed not long
after by public respondent COMELEC’s Consolidated Comment. 29
The Issues
Abundo raises the following grounds for the allowance of the petition:
6.1 The Commission En Banc committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it declared the arguments in Abundo’s motion for
reconsideration as mere rehash and reiterations of the claims he raised prior to the
promulgation of the Resolution.
6.2 The Commission En Banc committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it declared that Abundo has consecutively served
for three terms despite the fact that he only served the remaining one year and one
month of the second term as a result of an election protest. 30
First Issue:
Arguments in Motion for Reconsideration Not Mere Reiteration
Josef Elvin Campos
The COMELEC en banc denied Abundo’s motion for reconsideration on the basis that his
arguments in said motion are mere reiterations of what he already brought up in his appeal
Brief before the COMELEC Second Division. In this petition, petitioner claims otherwise.
Petitioner’s assertion is devoid of merit.
A comparison of Abundo’s arguments in the latter’s Brief vis-à-vis those in his Motion for
Reconsideration (MR) reveals that the arguments in the MR are elucidations and
amplications of the same issues raised in the brief. First, in his Brief, Abundo raised the sole
issue of lack of jurisdiction of the RTC to consider the quo warranto case since the alleged
violation of the three-term limit has already been rejected by the COMELEC First Division in
SPA Case No. 10-128 (DC), while in his MR, Abundo raised the similar ground of the
conclusiveness of the COMELEC’s finding on the issue of his qualification to run for the
current term. Second, in his Brief, Abundo assailed RTC’s reliance on Aldovino, Jr., while in
his MR, he argued that the Court’s pronouncement in Aldovino, Jr., which dealt with
preventive suspension, is not applicable to the instant case as it involves only a partial
service of the term. Abundo argued in his Brief that his situation cannot be equated with the
case of preventive suspension as held in Aldovino, Jr., while in his MR, he argued before
that the almost two years which he did not sit as mayor during the 2004-2007 term is an
interruption in the continuity of his service for the full term.
Thus, COMELEC did not err in ruling that the issues in the MR are a rehash of those in the
Brief.
Core Issue:
Whether or not Abundo is deemed to have served three consecutive terms
The pivotal determinative issue then is whether the service of a term less than the full three
years by an elected official arising from his being declared as the duly elected official upon
an election protest is considered as full service of the term for purposes of the application of
the three consecutive term limit for elective local officials.
On this core issue, We find the petition meritorious. The consecutiveness of what otherwise
would have been Abundo’s three successive, continuous mayorship was effectively broken
during the 2004-2007 term when he was initially deprived of title to, and was veritably
disallowed to serve and occupy, an office to which he, after due proceedings, was
eventually declared to have been the rightful choice of the electorate.
The three-term limit rule for elective local officials, a disqualification rule, is found in Section
8, Article X of the 1987 Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. 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. (Emphasis supplied.)
and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government
Code (LGC) of 1991, thusly:
Sec. 43. Term of Office. —
xxxx
(b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected. (Emphasis Ours.)
To constitute a disqualification to run for an elective local office pursuant to the aforequoted
constitutional and statutory provisions, the following requisites must concur:
(1) that the official concerned has been elected for three consecutive terms in the
same local government post; and
(2) that he has fully served three consecutive terms. 31
Judging from extant jurisprudence, the three-term limit rule, as applied to the different
factual milieus, has its complicated side. We shall revisit and analyze the various holdings
and relevant pronouncements of the Court on the matter.
As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the
LGC, voluntary renunciation of the office by the incumbent elective local official for any
length of time shall NOT, in determining service for three consecutive terms, be considered
an interruption in the continuity of service for the full term for which the elective official
concerned was elected. In Aldovino, Jr., however, the Court stated the observation that the
law "does not textually state that voluntary renunciation is the only actual interruption of
service that does not affect ‘continuity of service for a full term’ for purposes of the three-
term limit rule."32
Josef Elvin Campos
As stressed in Socrates v. Commission on Elections, 33 the principle behind the three-term
limit rule covers only consecutive terms and that what the Constitution prohibits is a
consecutive fourth term. Put a bit differently, an elective local official cannot, following his
third consecutive term, seek immediate reelection for a fourth term, 34 albeit he is allowed to
seek a fresh term for the same position after the election where he could have sought his
fourth term but prevented to do so by reason of the prohibition.
There has, in fine, to be a break or interruption in the successive terms of the official after
his or her third term. An interruption usually occurs when the official does not seek a fourth
term, immediately following the third. Of course, the basic law is unequivocal that a
"voluntary renunciation of the office for any length of time shall NOT be considered an
interruption in the continuity of service for the full term for which the elective official
concerned was elected." This qualification was made as a deterrent against an elective
local official intending to skirt the three-term limit rule by merely resigning before his or her
third term ends. This is a voluntary interruption as distinguished from involuntary interruption
which may be brought about by certain events or causes.
While appearing to be seemingly simple, the three-term limit rule has engendered a host of
disputes resulting from the varying interpretations applied on local officials who were
elected and served for three terms or more, but whose terms or service was punctuated by
what they view as involuntary interruptions, thus entitling them to a, but what their
opponents perceive as a proscribed, fourth term. Involuntary interruption is claimed to result
from any of these events or causes: succession or assumption of office by operation of law,
preventive suspension, declaration of the defeated candidate as the winner in an election
contest, declaration of the proclaimed candidate as the losing party in an election contest,
proclamation of a non-candidate as the winner in a recall election, removal of the official by
operation of law, and other analogous causes.
This brings us to an examination of situations and jurisprudence wherein such consecutive
terms were considered or not considered as having been "involuntarily interrupted or
broken."
(1) Assumption of Office by Operation of Law
In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr. 35 (1998) and Montebon v.
Commission on Elections36 (2008), the Court delved on the effects of "assumption to office
by operation of law" on the three-term limit rule. This contemplates a situation wherein an
elective local official fills by succession a higher local government post permanently left
vacant due to any of the following contingencies, i.e., when the supposed incumbent
refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or
is otherwise permanently incapacitated to discharge the functions of his office. 37
In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on January 18,
1988 for a term ending June 30, 1992. On September 2, 1989, Capco became mayor, by
operation of law, upon the death of the incumbent mayor, Cesar Borja. Capco was then
elected and served as mayor for terms 1992-1995 and 1995-1998. When Capco expressed
his intention to run again for the mayoralty position during the 1998 elections, Benjamin U.
Borja, Jr., who was then also a candidate for mayor, sought Capco’s disqualification for
violation of the three-term limit rule.
Finding for Capco, the Court held that for the disqualification rule to apply, "it is not enough
that an individual has served three consecutive terms in an elective local office, he must
also have been elected to the same position for the same number of times before the
disqualification can apply."38 There was, the Court ruled, no violation of the three-term limit,
for Capco "was not elected to the office of the mayor in the first term but simply found
himself thrust into it by operation of law" 39 when a permanent vacancy occurred in that
office.
The Court arrived at a parallel conclusion in the case of Montebon. There, Montebon had
been elected for three consecutive terms as municipal councilor of Tuburan, Cebu in 1998-
2001, 2001-2004, and 2004-2007. However, in January 2004, or during his second term,
Montebon succeeded and assumed the position of vice-mayor of Tuburan when the
incumbent vice-mayor retired. When Montebon filed his certificate of candidacy again as
municipal councilor, a petition for disqualification was filed against him based on the three-
term limit rule. The Court ruled that Montebon’s assumption of office as vice-mayor in
January 2004 was an interruption of his continuity of service as councilor. The Court
emphasized that succession in local government office is by operation of law and as such, it
is an involuntary severance from office. Since the law no less allowed Montebon to vacate
his post as councilor in order to assume office as vice-mayor, his occupation of the higher
office cannot, without more, be deemed as a voluntary renunciation of his position as
councilor.
Josef Elvin Campos
(2) Recall Election
With reference to the effects of recall election on the continuity of service, Adormeo v.
Commission on Elections40 (2002) and the aforementioned case of Socrates (2002) provide
guidance.
In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as mayor of Lucena City
during terms 1992-1995 and 1995-1998. During the 1998 elections, Talaga lost to Bernard
G. Tagarao. However, before Tagarao’s 1998-2001 term ended, a recall election was
conducted in May 2000 wherein Talaga won and served the unexpired term of Tagarao until
June 2001. When Talaga ran for mayor in 2001, his candidacy was challenged on the
ground he had already served as mayor for three consecutive terms for violation of the
three term-limit rule. The Court held therein that the remainder of Tagarao’s term after the
recall election during which Talaga served as mayor should not be considered for purposes
of applying the three-term limit rule. The Court emphasized that the continuity of Talaga’s
mayorship was disrupted by his defeat during the 1998 elections.
A similar conclusion was reached by the Court in Socrates. The petitioners in that case
assailed the COMELEC Resolution which declared Edward Hagedorn qualified to run for
mayor in a recall election. It appeared that Hagedorn had been elected and served as
mayor of Puerto Princesa City for three consecutive terms: in 1992-1995, 1995-1998 and
1998-2001. Obviously aware of the three-term limit principle, Hagedorn opted not to vie for
the same mayoralty position in the 2001 elections, in which Socrates ran and eventually
won. However, midway into his term, Socrates faced recall proceedings and in the recall
election held, Hagedorn run for the former’s unexpired term as mayor. Socrates sought
Hagedorn’s disqualification under the three-term limit rule.
In upholding Hagedorn’s candidacy to run in the recall election, the Court ruled:
x x x After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen
until the recall election of September 24, 2002 when he won by 3,018 votes over his closest
opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto
Princesa was Socrates. During the same period, Hagedorn was simply a private citizen.
This period is clearly an interruption in the continuity of Hagedorn’s service as mayor, not
because of his voluntary renunciation, but because of a legal prohibition. 41
The Court likewise emphasized in Socrates that "an elective local official cannot seek
immediate reelection for a fourth term. The prohibited election refers to the next regular
election for the same office following the end of the third consecutive term and, hence, any
subsequent election, like recall election, is no longer covered x x x." 42
(3) Conversion of a Municipality into a City
On the other hand, the conversion of a municipality into a city does not constitute an
interruption of the incumbent official’s continuity of service. The Court said so in Latasa v.
Commission on Elections43 (2003).
Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was elected and served as
mayor of the Municipality of Digos, Davao del Sur for terms 1992-1995, 1995-1998, and
1998-2001. During his third term, Digos was converted into a component city, with the
corresponding cityhood law providing the holdover of elective officials. When Latasa filed
his certificate of candidacy as mayor for the 2001 elections, the Court declared Latasa as
disqualified to run as mayor of Digos City for violation of the three-term limit rule on the
basis of the following ratiocination:
This Court believes that (Latasa) did involuntarily relinquish his office as municipal mayor
since the said office has been deemed abolished due to the conversion. However, the very
instant he vacated his office as municipal mayor, he also assumed office as city mayor.
Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped
down from office, petitioner Latasa never ceased from acting as chief executive of the local
government unit. He never ceased from discharging his duties and responsibilities as chief
executive of Digos.
(4) Period of Preventive Suspension
In 2009, in the case Aldovino Jr., the Court espoused the doctrine that the period during
which a local elected official is under preventive suspension cannot be considered as an
interruption of the continuity of his service. The Court explained why so:
Strict adherence to the intent of the three-term limit rule demands that preventive
suspension should not be considered an interruption that allows an elective official’s stay in
office beyond three terms. A preventive suspension cannot simply be a term interruption
because the suspended official continues to stay in office although he is barred from
exercising the functions and prerogatives of the office within the suspension period. The
Josef Elvin Campos
best indicator of the suspended official’s continuity in office is the absence of a permanent
replacement and the lack of the authority to appoint one since no vacancy
exists.44 (Emphasis supplied.)
(5) Election Protest
With regard to the effects of an election protest vis-à-vis the three-term limit rule,
jurisprudence presents a more differing picture. The Court’s pronouncements in Lonzanida
v. Commission on Elections45 (1999), Ong v. Alegre46 (2006), Rivera III v. Commission on
Elections47 (2007) and Dizon v. Commission on Elections 48 (2009), all protest cases, are
illuminating.
In Lonzanida, Romeo Lonzanida was elected and had served as municipal mayor of San
Antonio, Zambales in terms 1989-1992, 1992-1995 and 1995-1998. However, his
proclamation relative to the 1995 election was protested and was eventually declared by the
RTC and then by COMELEC null and void on the ground of failure of elections. On
February 27, 1998, or about three months before the May 1998 elections, Lonzanida
vacated the mayoralty post in light of a COMELEC order and writ of execution it issued.
Lonzanida’s opponent assumed office for the remainder of the term. In the May 1998
elections, Lonzanida again filed his certificate of candidacy. His opponent, Efren Muli, filed a
petition for disqualification on the ground that Lonzanida had already served three
consecutive terms in the same post. The Court, citing Borja Jr., reiterated the two (2)
conditions which must concur for the three-term limit to apply: "1) that the official concerned
has been elected for three consecutive terms in the same local government post and 2) that
he has fully served three consecutive terms." 49
In view of Borja, Jr., the Court ruled that the foregoing requisites were absent in the case of
Lonzanida. The Court held that Lonzanida cannot be considered as having been duly
elected to the post in the May 1995 elections since his assumption of office as mayor
"cannot be deemed to have been by reason of a valid election but by reason of a void
proclamation." And as a corollary point, the Court stated that Lonzanida did not fully serve
the 1995-1998 mayoral term having been ordered to vacate his post before the expiration of
the term, a situation which amounts to an involuntary relinquishment of office.This Court
deviated from the ruling in Lonzanida in Ong v. Alegre 50 owing to a variance in the factual
situations attendant.
In that case, Francis Ong (Ong) was elected and served as mayor of San Vicente,
Camarines Norte for terms 1995-1998, 1998-2001, and 2001-2004. During the 1998
mayoralty elections, or during his supposed second term, the COMELEC nullified Ong’s
proclamation on the postulate that Ong lost during the 1998 elections. However, the
COMELEC’s decision became final and executory on July 4, 2001, when Ong had fully
served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-
2004 term as mayor-elect of the municipality of San Vicente. In 2004, Ong filed his
certificate of candidacy for the same position as mayor, which his opponent opposed for
violation of the three-term limit rule.
Ong invoked the ruling in Lonzanida and argued that he could not be considered as having
served as mayor from 1998-2001 because he was not duly elected to the post and merely
assumed office as a "presumptive winner." Dismissing Ong’s argument, the Court held that
his assumption of office as mayor for the term 1998-2001 constitutes "service for the full
term" and hence, should be counted for purposes of the three-term limit rule. The Court
modified the conditions stated in Lonzanida in the sense that Ong’s service was deemed
and counted as service for a full term because Ong’s proclamation was voided only after the
expiry of the term. The Court noted that the COMELEC decision which declared Ong as not
having won the 1998 elections was "without practical and legal use and value" promulgated
as it was after the contested term has expired. The Court further reasoned:
Petitioner Francis Ong’s contention that he was only a presumptive winner in the 1998
mayoralty derby as his proclamation was under protest did not make him less than a duly
elected mayor. His proclamation as the duly elected mayor in the 1998 mayoralty election
coupled by his assumption of office and his continuous exercise of the functions thereof
from start to finish of the term, should legally be taken as service for a full term in
contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such
contrary view would mean that Alegre would – under the three-term rule - be considered as
having served a term by virtue of a veritably meaningless electoral protest ruling, when
another actually served such term pursuant to a proclamation made in due course after an
election.51 (Emphasis supplied.)
The Court did not apply the ruling in Lonzanida and ruled that the case of Ong was different,
to wit:
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The difference between the case at bench and Lonzanida is at once apparent. For one, in
Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason
of "failure of election", and, as a consequence thereof, the proclamation of Lonzanida as
mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For
another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an
involuntary severance from office as a result of legal processes. In fine, there was an
effective interruption of the continuity of service. 52 (Emphasis supplied.)
Ong’s slight departure from Lonzanida would later find reinforcement in the consolidated
cases of Rivera III v. Commission on Elections 53 and Dee v. Morales.54 Therein, Morales
was elected mayor of Mabalacat, Pampanga for the following consecutive terms: 1995-
1998, 1998-2001 and 2001-2004. In relation to the 2004 elections, Morales again ran as
mayor of the same town, emerged as garnering the majority votes and was proclaimed
elective mayor for term commencing July 1, 2004 to June 30, 2007. A petition for quo
warranto was later filed against Morales predicated on the ground that he is ineligible to run
for a "fourth" term, having served as mayor for three consecutive terms. In his answer,
Morales averred that his supposed 1998-2001 term cannot be considered against him, for,
although he was proclaimed by the Mabalacat board of canvassers as elected mayor vis-à-
vis the 1998 elections and discharged the duties of mayor until June 30, 2001, his
proclamation was later nullified by the RTC of Angeles City and his closest rival, Anthony
Dee, proclaimed the duly elected mayor. Pursuing his point, Morales parlayed the idea that
he only served as a mere caretaker.
The Court found Morales’ posture untenable and held that the case of Morales presents a
factual milieu similar with Ong, not with Lonzanida. For ease of reference, the proclamation
of Francis Ong, in Ong, was nullified, but after he, like Morales, had served the three-year
term from the start to the end of the term. Hence, the Court concluded that Morales
exceeded the three-term limit rule, to wit:
Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He
assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire
period notwithstanding the Decision of the RTC in the electoral protest case filed by
petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre,
such circumstance does not constitute an interruption in serving the full term.
xxxx
Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat
continuously without any break since July 1, 1995. In just over a month, by June 30, 2007,
he will have been mayor of Mabalacat for twelve (12) continuous years. 55 (Emphasis
supplied.)
The Court ruled in Rivera that the fact of being belatedly ousted, i.e., after the expiry of the
term, cannot constitute an interruption in Morales’ service of the full term; neither can
Morales, as he argued, be considered merely a "caretaker of the office" or a mere "de facto
officer" for purposes of applying the three-term limit rule.
In a related 2009 case of Dizon v. Commission on Elections, 56 the Court would again find
the same Mayor Morales as respondent in a disqualification proceeding when he ran again
as a mayoralty candidate during the 2007 elections for a term ending June 30, 2010. Having
been unseated from his post by virtue of this Court’s ruling in Rivera, Morales would argue
this time around that the three-term limit rule was no longer applicable as to his 2007
mayoralty bid. This time, the Court ruled in his favor, holding that for purposes of the 2007
elections, the three-term limit rule was no longer a disqualifying factor as against Morales.
The Court wrote:
Our ruling in the Rivera case served as Morales’ involuntary severance from office with
respect to the 2004-2007 term. Involuntary severance from office for any length of time
short of the full term provided by law amounts to an interruption of continuity of service. Our
decision in the Rivera case was promulgated on 9 May 2007 and was effective immediately.
The next day, Morales notified the vice mayor’s office of our decision. The vice mayor
assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The assumption by
the vice mayor of the office of the mayor, no matter how short it may seem to Dizon,
interrupted Morales’ continuity of service. Thus, Morales did not hold office for the full term
of 1 July 2004 to 30 June 2007.57 (Emphasis supplied)
To summarize, hereunder are the prevailing jurisprudence on issues affecting
consecutiveness of terms and/or involuntary interruption, viz:
1. When a permanent vacancy occurs in an elective position and the official merely
assumed the position pursuant to the rules on succession under the LGC, then his
service for the unexpired portion of the term of the replaced official cannot be treated
as one full term as contemplated under the subject constitutional and statutory
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provision that service cannot be counted in the application of any term limit (Borja,
Jr.). If the official runs again for the same position he held prior to his assumption of
the higher office, then his succession to said position is by operation of law and is
considered an involuntary severance or interruption (Montebon).
2. An elective official, who has served for three consecutive terms and who did not
seek the elective position for what could be his fourth term, but later won in a recall
election, had an interruption in the continuity of the official’s service. For, he had
become in the interim, i.e., from the end of the 3rd term up to the recall election, a
private citizen (Adormeo and Socrates).
3. The abolition of an elective local office due to the conversion of a municipality to a
city does not, by itself, work to interrupt the incumbent official’s continuity of service
(Latasa).
4. Preventive suspension is not a term-interrupting event as the elective officer’s
continued stay and entitlement to the office remain unaffected during the period of
suspension, although he is barred from exercising the functions of his office during
this period (Aldovino, Jr.).
5. When a candidate is proclaimed as winner for an elective position and assumes
office, his term is interrupted when he loses in an election protest and is ousted from
office, thus disenabling him from serving what would otherwise be the unexpired
portion of his term of office had the protest been dismissed (Lonzanida and Dizon).
The break or interruption need not be for a full term of three years or for the major
part of the 3-year term; an interruption for any length of time, provided the cause is
involuntary, is sufficient to break the continuity of service (Socrates, citing
Lonzanida).
6. When an official is defeated in an election protest and said decision becomes final
after said official had served the full term for said office, then his loss in the election
contest does not constitute an interruption since he has managed to serve the term
from start to finish. His full service, despite the defeat, should be counted in the
application of term limits because the nullification of his proclamation came after the
expiration of the term (Ong and Rivera).
The Case of Abundo
Abundo argues that the RTC and the COMELEC erred in uniformly ruling that he had
already served three consecutive terms and is, thus, barred by the constitutional three-term
limit rule to run for the current 2010-2013 term. In gist, Abundo arguments run thusly:
1. Aldovino, Jr. is not on all fours with the present case as the former dealt with
preventive suspension which does not interrupt the continuity of service of a term;
2. Aldovino, Jr. recognizes that the term of an elected official can be interrupted so
as to remove him from the reach of the constitutional three-term limitation;
3. The COMELEC misinterpreted the meaning of "term" in Aldovino, Jr. by its
reliance on a mere portion of the Decision and not on the unified logic in the
disquisition;
4. Of appropriate governance in this case is the holding in Lonzanida 58 and Rivera III
v. Commission on Elections.59
5. The COMELEC missed the point when it ruled that there was no interruption in the
service of Abundo since what he considered as an "interruption" of his 2004-2007
term occurred before his term started; and
6. To rule that the term of the protestee (Torres) whose proclamation was adjudged
invalid was interrupted while that of the protestant (Abundo) who was eventually
proclaimed winner was not so interrupted is at once absurd as it is illogical.
Both respondents Vega and the COMELEC counter that the ratio decidendi of Aldovino, Jr.
finds application in the instant case. The COMELEC ruled that Abundo did not lose title to
the office as his victory in the protest case confirmed his entitlement to said office and he
was only unable to temporarily discharge the functions of the office during the pendency of
the election protest.
We note that this present case of Abundo deals with the effects of an election protest, for
which the rulings in Lonzanida, Ong, Rivera and Dizon appear to be more attuned than the
case of Aldovino Jr., the interrupting effects of the imposition of a preventive suspension
being the very lis mota in the Aldovino, Jr. case. But just the same, We find that Abundo’s
case presents a different factual backdrop.
Unlike in the abovementioned election protest cases wherein the individuals subject of
disqualification were candidates who lost in the election protest and each declared loser
during the elections, Abundo was the winner during the election protest and was declared
the rightful holder of the mayoralty post. Unlike Mayor Lonzanida and Mayor Morales, who
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were both unseated toward the end of their respective terms, Abundo was the protestant
who ousted his opponent and had assumed the remainder of the term.
Notwithstanding, We still find this Court’s pronouncements in the past as instructive, and
consider several doctrines established from the 1998 case of Borja, Jr. up to the most
recent case of Aldovino Jr. in 2009, as potent aids in arriving at this Court’s conclusion.
The intention behind the three-term limit rule was not only to abrogate the "monopolization
of political power" and prevent elected officials from breeding "proprietary interest in their
position"60 but also to "enhance the people’s freedom of choice." 61 In the words of Justice
Vicente V. Mendoza, "while people should be protected from the evils that a monopoly of
power may bring about, care should be taken that their freedom of choice is not unduly
curtailed."62
In the present case, the Court finds Abundo’s case meritorious and declares that the two-
year period during which his opponent, Torres, was serving as mayor should be considered
as an interruption, which effectively removed Abundo’s case from the ambit of the three-
term limit rule.
It bears to stress at this juncture that Abundo, for the 2004 election for the term starting July
1, 2004 to June 30, 2007, was the duly elected mayor. Otherwise how explain his victory in
his election protest against Torres and his consequent proclamation as duly elected mayor.
Accordingly, the first requisite for the application of the disqualification rule based on the
three-term limit that the official has been elected is satisfied.
This thus brings us to the second requisite of whether or not Abundo had served for "three
consecutive terms," as the phrase is juridically understood, as mayor of Viga, Catanduanes
immediately before the 2010 national and local elections. Subsumed to this issue is of
course the question of whether or not there was an effective involuntary interruption during
the three three-year periods, resulting in the disruption of the continuity of Abundo’s
mayoralty.
The facts of the case clearly point to an involuntary interruption during the July 2004-June
2007 term.
There can be no quibbling that, during the term 2004-2007, and with the enforcement of the
decision of the election protest in his favor, Abundo assumed the mayoralty post only on
May 9, 2006 and served the term until June 30, 2007 or for a period of a little over one year
and one month. Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera, it
cannot be said that Mayor Abundo was able to serve fully the entire 2004-2007 term to
which he was otherwise entitled.
A "term," as defined in Appari v. Court of Appeals, 63 means, in a legal sense, "a fixed and
definite period of time which the law describes that an officer may hold an office." 64 It also
means the "time during which the officer may claim to hold office as a matter of right, and
fixes the interval after which the several incumbents shall succeed one another." 65 It is the
period of time during which a duly elected official has title to and can serve the functions of
an elective office. From paragraph (a) of Sec. 43, RA 7160, 66 the term for local elected
officials is three (3) years starting from noon of June 30 of the first year of said term.
In the present case, during the period of one year and ten months, or from June 30, 2004
until May 8, 2006, Abundo cannot plausibly claim, even if he wanted to, that he could hold
office of the mayor as a matter of right. Neither can he assert title to the same nor serve the
functions of the said elective office. The reason is simple: during that period, title to hold
such office and the corresponding right to assume the functions thereof still belonged to his
opponent, as proclaimed election winner. Accordingly, Abundo actually held the office and
exercised the functions as mayor only upon his declaration, following the resolution of the
protest, as duly elected candidate in the May 2004 elections or for only a little over one year
and one month. Consequently, since the legally contemplated full term for local elected
officials is three (3) years, it cannot be said that Abundo fully served the term 2004-2007.
The reality on the ground is that Abundo actually served less.
Needless to stress, the almost two-year period during which Abundo’s opponent actually
served as Mayor is and ought to be considered an involuntary interruption of Abundo’s
continuity of service. An involuntary interrupted term, cannot, in the context of the
disqualification rule, be considered as one term for purposes of counting the three-term
threshold.67
The notion of full service of three consecutive terms is related to the concepts of interruption
of service and voluntary renunciation of service. The word interruption means temporary
cessation, intermission or suspension. 68 To interrupt is to obstruct, thwart or
prevent.69 When the Constitution and the LGC of 1991 speak of interruption, the reference
is to the obstruction to the continuance of the service by the concerned elected official by
effectively cutting short the service of a term or giving a hiatus in the occupation of the
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elective office. On the other hand, the word "renunciation" connotes the idea of waiver or
abandonment of a known right. To renounce is to give up, abandon, decline or
resign.70 Voluntary renunciation of the office by an elective local official would thus mean to
give up or abandon the title to the office and to cut short the service of the term the
concerned elected official is entitled to.
In its assailed Resolution, the COMELEC en banc, applying Aldovino, Jr., 71 held:
It must be stressed that involuntary interruption of service which jurisprudence deems an
exception to the three-term limit rule, implies that the service of the term has begun before it
was interrupted. Here, the respondent did not lose title to the office. As the assailed
Resolution states:
In the case at bar, respondent cannot be said to have lost his title to the office. On the
contrary, he actively sought entitlement to the office when he lodged the election protest
case. And respondent-appellant’s victory in the said case is a final confirmation that he was
validly elected for the mayoralty post of Viga, Catanduanes in 2004-2007. At most,
respondent-appellant was only unable to temporarily discharge the functions of the office to
which he was validly elected during the pendency of the election protest, but he never lost
title to the said office.72 (Emphasis added.)
The COMELEC’s Second Division, on the other hand, pronounced that the actual length of
service by the public official in a given term is immaterial by reckoning said service for the
term in the application of the three-term limit rule, thus:
As emphasized in the case of Aldovino, "this formulation—no more than three consecutive
terms—is a clear command suggesting the existence of an inflexible rule." Therefore we
cannot subscribe to the argument that since respondent Abundo served only a portion of
the term, his 2004-2007 "term" should not be considered for purposes of the application of
the three term limit rule. When the framers of the Constitution drafted and incorporated the
three term limit rule, it is clear that reference is to the term, not the actual length of the
service the public official may render. Therefore, one’s actual service of term no matter how
long or how short is immaterial.73
In fine, the COMELEC ruled against Abundo on the theory that the length of the actual
service of the term is immaterial in his case as he was only temporarily unable to discharge
his functions as mayor.
The COMELEC’s case disposition and its heavy reliance on Aldovino, Jr. do not commend
themselves for concurrence. The Court cannot simply find its way clear to understand the
poll body’s determination that Abundo was only temporarily unable to discharge his
functions as mayor during the pendency of the election protest.
As previously stated, the declaration of being the winner in an election protest grants the
local elected official the right to serve the unexpired portion of the term. Verily, while he was
declared winner in the protest for the mayoralty seat for the 2004-2007 term, Abundo’s full
term has been substantially reduced by the actual service rendered by his opponent
(Torres). Hence, there was actual involuntary interruption in the term of Abundo and he
cannot be considered to have served the full 2004-2007 term.
This is what happened in the instant case. It cannot be overemphasized that pending the
favorable resolution of his election protest, Abundo was relegated to being an ordinary
constituent since his opponent, as presumptive victor in the 2004 elections, was occupying
the mayoralty seat. In other words, for almost two years or from July 1, 2004—the start of
the term—until May 9, 2006 or during which his opponent actually assumed the mayoralty
office, Abundo was a private citizen warming his heels while awaiting the outcome of his
protest. Hence, even if declared later as having the right to serve the elective position from
July 1, 2004, such declaration would not erase the fact that prior to the finality of the
election protest, Abundo did not serve in the mayor’s office and, in fact, had no legal right to
said position.
Aldovino Jr. cannot possibly lend support to respondent’s cause of action, or to
COMELEC’s resolution against Abundo. In Aldovino Jr., the Court succinctly defines what
temporary inability or disqualification to exercise the functions of an elective office means,
thus:
On the other hand, temporary inability or disqualification to exercise the functions of an
elective post, even if involuntary, should not be considered an effective interruption of a
term because it does not involve the loss of title to office or at least an effective break from
holding office; the office holder, while retaining title, is simply barred from exercising the
functions of his office for a reason provided by law. 74
We rule that the above pronouncement on preventive suspension does not apply to the
instant case. Verily, it is erroneous to say that Abundo merely was temporarily unable or
disqualified to exercise the functions of an elective post. For one, during the intervening
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period of almost two years, reckoned from the start of the 2004-2007 term, Abundo cannot
be said to have retained title to the mayoralty office as he was at that time not the duly
proclaimed winner who would have the legal right to assume and serve such elective office.
For another, not having been declared winner yet, Abundo cannot be said to have lost title
to the office since one cannot plausibly lose a title which, in the first place, he did not have.
Thus, for all intents and purposes, even if the belated declaration in the election protest
accords him title to the elective office from the start of the term, Abundo was not entitled to
the elective office until the election protest was finally resolved in his favor.1âwphi1
Consequently, there was a hiatus of almost two years, consisting of a break and effective
interruption of his service, until he assumed the office and served barely over a year of the
remaining term. At this juncture, We observe the apparent similarities of Mayor Abundo’s
case with the cases of Mayor Talaga in Adormeo and Mayor Hagedorn in Socrates as
Mayors Talaga and Hagedorn were not proclaimed winners since they were non-candidates
in the regularelections. They were proclaimed winners during the recall elections and clearly
were not able to fully serve the terms of the deposed incumbent officials. Similar to their
cases where the Court deemed their terms as involuntarily interrupted, Abundo also
became or was a private citizen during the period over which his opponent was serving as
mayor. If in Lonzanida, the Court ruled that there was interruption in Lonzanida’s service
because of his subsequent defeat in the election protest, then with more reason, Abundo’s
term for 2004-2007 should be declared interrupted since he was not proclaimed winner after
the 2004 elections and was able to assume the office and serve only for a little more than a
year after winning the protest.
As aptly stated in Latasa, to be considered as interruption of service, the "law contemplates
a rest period during which the local elective official steps down from office and ceases to
exercise power or authority over the inhabitants of the territorial jurisdiction of a particular
local government unit."75 Applying the said principle in the present case, there is no question
that during the pendency of the election protest, Abundo ceased from exercising power or
authority over the good people of Viga, Catanduanes.
Consequently, the period during which Abundo was not serving as mayor should be
considered as a rest period or break in his service because, as earlier stated, prior to the
judgment in the election protest, it was Abundo’s opponent, Torres, who was exercising
such powers by virtue of the still then valid proclamation.
As a final note, We reiterate that Abundo’s case differs from other cases involving the
effects of an election protest because while Abundo was, in the final reckoning, the winning
candidate, he was the one deprived of his right and opportunity to serve his constituents. To
a certain extent, Abundo was a victim of an imperfect election system. While admittedly the
Court does not possess the mandate to remedy such imperfections, the Constitution has
clothed it with enough authority to establish a fortress against the injustices it may bring.
In this regard, We find that a contrary ruling would work damage and cause grave injustice
to Abundo––an elected official who was belatedly declared as the winner and assumed
office for only a short period of the term. If in the cases of Lonzanida and Dizon, this Court
ruled in favor of a losing candidate––or the person who was adjudged not legally entitled to
hold the contested public office but held it anyway––We find more reason to rule in favor of
a winning candidate-protestant who, by popular vote, deserves title to the public office but
whose opportunity to hold the same was halted by an invalid proclamation.
Also, more than the injustice that may be committed against Abundo is the injustice that
may likewise be committed against the people of Viga, Catanduanes by depriving them of
their right to choose their leaders. Like the framers of the Constitution, We bear in mind that
We "cannot arrogate unto ourselves the right to decide what the people want" 76 and hence,
should, as much as possible, "allow the people to exercise their own sense of proportion
and rely on their own strength to curtail the power when it overreaches itself." 77 For
democracy draws strength from the choice the people make which is the same choice We
are likewise bound to protect.
WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly, the assailed
February 8, 2012 Resolution of the Commission on Elections Second Division and May 10,
2012 Resolution of the Commission on Elections en banc in EAC (AE) No. A-25-2010 and
the Decision of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated
August 9, 2010, in Election Case No. 55, are hereby REVERSED and SET ASIDE.
Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga,
Catanduanes to which he was duly elected in the May 2010 elections and is accordingly
ordered IMMEDIATELY REINSTATED to said position. Withal, Emeterio M. Tarin and
Cesar O. Cervantes are ordered to immediately vacate the positions of Mayor and Vice-
Josef Elvin Campos
Mayor of Viga, Catanduanes, respectively, and shall revert to their original positions of Vice-
Mayor and First Councilor, respectively, upon receipt of this Decision.
The TRO issued by the Court on July 3, 2012 is hereby LIFTED.
This Decision is immediately executory.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
Borja v. Comelec (G.R. No. 133495, 03 September 1998)

G.R. No. 133495 September 3, 1998
BENJAMIN U. BORJA, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents.
MENDOZA, J.:
This case presents for determination the scope of the constitutional provision barring
elective local officials, with the exception of barangay officials, from serving more than three
consecutive terms. In particular, the question is whether a vice-mayor who succeeds to the
office of mayor by operation of law and serves the remainder of the term is considered to
have served a term in that office for the purpose of the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18,
1988 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by
operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran
and was elected mayor for a term of three years which ended on June 30, 1995. On May 8,
1995, he was reelected mayor for another term of three years ending June 30, 1998. 1
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of
Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja Jr., who was
also a candidate for mayor, sought Capco's disqualification on the theory that the latter
would have already served as mayor for three consecutive terms by June 30, 1998 and
would therefore be ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of
petitioner and declared private respondent Capco disqualified from running for reelection as
mayor of Pateros. 2 However, on motion of private respondent the COMELEC en banc,
voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May
11, 1998 elections. 3 The majority stated in its decision:
In both the Constitution and the Local Government Code, the three-term
limitation refers to the term of office for which the local official was elected. It
made no reference to succession to an office to which he was not elected. In
the case before the Commission, respondent Capco was not elected to the
position of Mayor in the January 18, 1988 local elections. He succeeded to
such office by operation of law and served for the unexpired term of his
predecessor. Consequently, such succession into office is not counted as one
(1) term for purposes of the computation of the three-term limitation under the
Constitution and the Local Government Code.
Accordingly, private respondent was voted for in the elections. He received 16,558 votes
against petitioner's 7,773 votes and was proclaimed elected by the Municipal Board of
Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated My 7, 1998, of the
COMELEC and to seek a declaration that private respondent is disqualified to serve another
term as mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capco's service as mayor from September 2,
1989 to June 30, 1992 should be considered as service for one full term, and since he
thereafter served from 1992 to 1998 two more terms as mayor, he should be considered to
have served three consecutive terms within the contemplation of Art. X, §8 of the
Constitution and §43(b) of the Local Government Code. Petitioner stresses the fact that,
upon the death of Mayor Cesar Borja on September 2, 1989, private respondent became
the mayor and thereafter served the remainder of the term. Petitioner argues that it is
irrelevant that private respondent became mayor by succession because the purpose of the
constitutional provision in limiting the number of terms elective local officials may serve is to
prevent a monopolization of political power.
This contention will not bear analysis. Article X, §8 of the Constitution provides:
Josef Elvin Campos
Sec. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official
shall serve for more than three consecutive terms. 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.
This provision is restated in §43(b) of the Local Government Code (R.A. No. 7160):
Sec. 43. Term of Office. — . . .
(b) No local elective official shall serve for more than three (3) consecutive
terms in the same position. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of service
for the full term for which the elective official concerned was elected. . . .
First, to prevent the establishment of political dynasties is not the only policy embodied in
the constitutional provision in question. The other policy is that of enhancing the freedom of
choice of the people. To consider, therefore, only stay in office regardless of how the official
concerned came to that office — whether by election or by succession by operation of law
— would be to disregard one of the purposes of the constitutional provision in question.
Thus, a consideration of the historical background of Article X, §8 of the Constitution reveals
that the members of the Constitutional Commission were as much concerned with
preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years
there should be no further reelection for local and legislative officials. Instead, they adopted
the alternative proposal of Commissioner Christian Monsod that such officials be simply
barred from running for the same position in the of the succeeding election following the
expiration of the third consecutive term. 4 Monsod warned against "prescreening candidates
[from] whom the people will choose" as a result of the proposed absolute disqualification,
considering that the draft constitution contained provisions "recognizing people's power." 5
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a
temporary or a perpetual disqualification on those who have served their
terms in accordance with the limits on consecutive service as decided by the
Constitutional Commission. I would be very wary about this Commission
exercising a sort of omnipotent power in order to disqualify those who will
already have served their terms from perpetuating themselves in office. I think
the Commission achieves its purpose in establishing safeguards against the
excessive accumulation of power as a result of consecutive terms. We do put
a cap on consecutive service — in the case of the President, six years, in the
case of the Vice-President, unlimited; and in the case of the Senators, one
reelection. In the case of the Members of Congress, both from the legislative
districts and from the party list and sectoral representation, this is now under
discussion and later on the policy concerning local officials will be taken up by
the Committee on Local Governments. The principle remains the same. I
think we want to prevent future situations where, as a result of continuous
service and frequent reelections, officials from the President down to the
municipal mayor tend to develop a proprietary interest in their positions and to
accumulate those powers and perquisites that permit them to stay on
indefinitely or to transfer these posts to members of their families in a
subsequent election. I think that is taken care of because we put a gap on the
continuity or the unbroken service of all of these officials. But where we now
decide to put these prospective servants of the people or politicians, if we
want to use the coarser term, under a perpetual disqualification, I have a
feeling that we are taking away too much from the people, whereas we
should be giving as much to the people as we can in terms of their own
freedom of choice. . . . 6
Other commissioners went on record against "perpetually disqualifying" elective officials
who have served a certain number of terms as this would deny the right of the people to
choose. As Commissioner Yusup R. Abubakar asked, "why should we arrogate unto
ourselves the right to decide what the people want?" 7
Commissioner Felicitas S. Aquino spoke in the same vein when she called on her
colleagues to "allow the people to exercise their own sense of proportion and [rely] on their
own strength to curtail power when it overreaches itself." 8
Commissioner Teodoro C. Bacani stressed: "Why should we not leave [perpetual
disqualification after serving a number of terms] to the premise accepted by practically
Josef Elvin Campos
everybody here that our people are politically mature? Should we use this assumption only
when it is convenient for us, and not when it may also lead to a freedom of choice for the
people and for politicians who may aspire to serve them longer?" 9
Two ideas thus emerge from a consideration of the proceedings of the Constitutional
Commission. The first is the notion of service of term, derived from the concern about the
accumulation of power as a result of a prolonged stay in office. The second is the idea
of election, derived from the concern that the right of the people to choose those whom they
wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so
on the assumption that the officials concerned were serving by reason of election. This is
clear from the following exchange in the Constitutional Commission concerning term limits,
now embodied in Art. VI, §§4 and 7 of the Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the
second term. We will allow the Senator to rest for a period of time before he
can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before — if the
Gentlemen will remember — was: How long will that period of rest be? Will it
be one election which is three years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo
expressed the view that during the election following the expiration of the first
12 years, whether such election will be on the third year or on the sixth year
thereafter, this particular member of the Senate can run. So, it is not really a
period of hibernation for six years. That was the Committee's stand. 10
Indeed a fundamental tenet of representative democracy is that the people should be
allowed to choose those whom they please to govern them. 11 To bar the election of a local
official because he has already served three terms, although the first as a result of
succession by operation of law rather than election, would therefore be to violate this
principle.
Second, not only historical examination but textual analysis as well supports the ruling of
the COMELEC that Art. X, §8 contemplates service by local officials for three consecutive
terms as a result of election. The first sentence speaks of "the term of office of elective local
officials" and bars "such official[s]" from serving for more than three consecutive terms. The
second sentence, in explaining when an elective local official may be deemed to have
served his full term of office, states that "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." The term served must therefore be one "for which [the
official concerned] was elected." The purpose of this provision is to prevent a circumvention
of the limitation on the number of terms an elective local official may serve. Conversely, if
he is not serving a term for which he was elected because he is simply continuing the
service of the official he succeeds, such official cannot be considered to have fully served
the term notwithstanding his voluntary renunciation of office prior to its expiration.
Reference is made to Commissioner Bernas' comment on Art. VI, §7, which similarly bars
members of the House of Representatives from serving for more than three terms.
Commissioner Bernas states that "if one is elected Representative to serve the unexpired
term of another, that unexpired term, no matter how short, will be considered one term for
the purpose of computing the number of successive terms allowed." 12
This is actually based on the opinion expressed by Commissioner Davide in answer to a
query of Commissioner Suarez: "For example, a special election is called for a Senator, and
the Senator newly elected would have to serve the unexpired portion of the term. Would
that mean that serving the unexpired portion of the term is already considered one term?
So, half a term, which is actually the correct statement, plus one term would disqualify the
Senator concerned from running? Is that the meaning of this provision on disqualification,
Madam President?" Commissioner Davide said: "Yes, because we speak of "term," and if
there is a special election, he will serve only for the unexpired portion of that particular term
plus one more term for the Senator and two more terms for the Members of the Lower
House." 13
There is a difference, however, between the case of a vice-mayor and that of a member of
the House of Representatives who succeeds another who dies, resigns, becomes
incapacitated, or is removed from office. The vice-mayor succeeds to the mayorship by
operation of law. 14 On the other hand, the Representative is elected to fill the vacancy. 15 In
a real sense, therefore, such Representative serves a term for which he was elected. As the
purpose of the constitutional provision is to limit the right to be elected and to serve in
Josef Elvin Campos
Congress, his service of the unexpired term is rightly counted as his first term. Rather than
refute what we believe to be the intendment of Art. X, §8 with regard to elective local
officials, the case of a Representative who succeeds another confirms the theory.
Petitioner also cites Art. VII, §4 of the Constitution which provides for succession of the
Vice-President to the Presidency in case of vacancy in that office. After stating that "The
President shall not be eligible for any reelection," this provision says that "No person who
has succeeded as President and has served as such for more than four years shall be
qualified for election to the same office at any time." Petitioner contends that, by analogy,
the vice-mayor should likewise be considered to have served a full term as mayor if he
succeeds to the latter's office and serves for the remainder of the term.
The framers of the Constitution included such a provision because, without it, the Vice-
President, who simply steps into the Presidency by succession, would be qualified to run
President even if he has occupied that office for more than four years. The absence of a
similar provision in Art. X, §8 on elective local officials throws in bold relief the difference
between the two cases. It underscores the constitutional intent to cover only the terms of
office to which one may have been elected for purposes of the three-term limit on local
elective officials, disregarding for this purpose service by automatic succession.
There is another reason why the Vice-President who succeeds to the Presidency and
serves in that office for more than four years is ineligible for election as President. The Vice-
President is elected primarily to succeed the President in the event of the latter's death,
permanent disability, removal, or resignation. While he may be appointed to the cabinet, his
becoming, so is entirely dependent on the good graces of the President. In running for Vice-
President, he may thus be said to also seek the Presidency. For their part, the electors
likewise choose as Vice-President the candidate who they think can fill the Presidency in
the event it becomes vacant. Hence, service in the Presidency for more than four years may
rightly be considered as service for a full term.
This is not so in the case of the vice-mayor. Under the Local Government Code, he is the
presiding officer of the sanggunian and he appoints all officials and employees of such local
assembly. He has distinct powers and functions, succession to mayorship in the event of
vacancy therein being only one of
16
them. It cannot be said of him, as much as of the Vice-President in the event of a vacancy
in the Presidency, that, in running for vice-mayor, he also seeks the mayorship. His
assumption of the mayorship in the event of vacancy is more a matter of chance than of
design. Hence, his service in that office should not be counted in the application of any term
limit.
To recapitulate, the term limit for elective local officials must be taken to refer to the right to
be elected as well as the right to serve in the same elective position. Consequently, it is not
enough that an individual has served three consecutive terms in an elective local office, he
must also have been elected to the same position for the same number of times before the
disqualification can apply. This point can be made clearer by considering the following
cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the
death of the incumbent. Six months before the next election, he resigns and
is twice elected thereafter. Can he run again for mayor in the next election?
Yes, because although he has already first served as mayor by succession
and subsequently resigned from office before the full term expired, he has not
actually served three full terms in all for the purpose of applying the term limit.
Under Art. X, §8, voluntary renunciation of the office is not considered as an
interruption in the continuity of his service for the full term only if the term is
one "for which he was elected." Since A is only completing the service of the
term for which the deceased and not he was elected, A cannot be considered
to have completed one term. His resignation constitutes an interruption of the
full term.
Case No. 2. Suppose B is elected mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after
that, can he run for one more term in the next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the two conditions for the
application of the disqualification provisions have not concurred, namely, that the local
official concerned has been elected three consecutive times and that he has fully served
three consecutive terms. In the first case, even if the local official is considered to have
served three full terms notwithstanding his resignation before the end of the first term, the
fact remains that he has not been elected three times. In the second case, the local official
Josef Elvin Campos
has been elected three consecutive times, but he has not fully served three consecutive
terms.
Case No. 3. The case of vice-mayor C who becomes mayor by succession
involves a total failure of the two conditions to concur for the purpose of
applying Art. X, §8. Suppose he is twice elected after that term, is he qualified
to run again in the next election?
Yes, because he was not elected to the office of mayor in the first term but
simply found himself thrust into it by operation of law. Neither had he served
the full term because he only continued the service, interrupted by the death,
of the deceased mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to
run a third time for reelection would be not only to falsify reality but also to unduly restrict
the right of the people to choose whom they wish to govern them. If the vice-mayor turns
out to be a bad mayor, the people can remedy the situation by simply not reelecting him for
another term. But if, on the other hand, he proves to be a good mayor, there will be no way
the people can return him to office (even if it is just the third time he is standing for
reelection) if his service of the first term is counted as one for the purpose of applying the
term limit.
To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a
monopoly of political power may bring about, care should be taken that their freedom of
choice is not unduly curtailed.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.
Regalado, J., is on leave.
Aldovino v. Comelec (G.R. No. 184836, 23 December 2009)

G.R. No. 184836 December 23, 2009
SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N.
TALABONG, Petitioners,
vs.
COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents.
DECISION
BRION, J.:
Is the preventive suspension of an elected public official an interruption of his term of office
for purposes of the three-term limit rule under Section 8, Article X of the Constitution and
Section 43(b) of Republic Act No. 7160 (RA 7160, or the Local Government Code)?
The respondent Commission on Elections (COMELEC) ruled that preventive suspension is
an effective interruption because it renders the suspended public official unable to provide
complete service for the full term; thus, such term should not be counted for the purpose of
the three-term limit rule.
The present petition1 seeks to annul and set aside this COMELEC ruling for having been
issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
THE ANTECEDENTS
The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three
consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In
September 2005 or during his 2004-2007 term of office, the Sandiganbayan preventively
suspended him for 90 days in relation with a criminal case he then faced. This Court,
however, subsequently lifted the Sandiganbayan’s suspension order; hence, he resumed
performing the functions of his office and finished his term.
In the 2007 election, Asilo filed his certificate of candidacy for the same position. The
petitioners Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the
petitioners) sought to deny due course to Asilo’s certificate of candidacy or to cancel it on
the ground that he had been elected and had served for three terms; his candidacy for a
fourth term therefore violated the three-term limit rule under Section 8, Article X of the
Constitution and Section 43(b) of RA 7160.
The COMELEC’s Second Division ruled against the petitioners and in Asilo’s favour in its
Resolution of November 28, 2007. It reasoned out that the three-term limit rule did not
apply, as Asilo failed to render complete service for the 2004-2007 term because of the
suspension the Sandiganbayan had ordered.
Josef Elvin Campos
The COMELEC en banc refused to reconsider the Second Division’s ruling in its October 7,
2008 Resolution; hence, the PRESENT PETITION raising the following ISSUES:
1. Whether preventive suspension of an elected local official is an interruption of the
three-term limit rule; and
2. Whether preventive suspension is considered involuntary renunciation as
contemplated in Section 43(b) of RA 7160
Thus presented, the case raises the direct issue of whether Asilo’s preventive suspension
constituted an interruption that allowed him to run for a 4th term.
THE COURT’S RULING
We find the petition meritorious.
General Considerations
The present case is not the first before this Court on the three-term limit provision of the
Constitution, but is the first on the effect of preventive suspension on the continuity of an
elective official’s term. To be sure, preventive suspension, as an interruption in the term of
an elective public official, has been mentioned as an example in Borja v. Commission on
Elections.2 Doctrinally, however, Borja is not a controlling ruling; it did not deal with
preventive suspension, but with the application of the three-term rule on the term that an
elective official acquired by succession.
a. The Three-term Limit Rule:
The Constitutional Provision Analyzed
Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials, except barangay officials, which shall
be determined by law, shall be three years and no such official shall serve for more than
three consecutive terms. 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.
Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference
in wording does not assume any significance in this case.
As worded, the constitutional provision fixes the term of a local elective office and limits an
elective official’s stay in office to no more than three consecutive terms. This is the first
branch of the rule embodied in Section 8, Article X.
Significantly, this provision refers to a "term" as a period of time – three years – during
which an official has title to office and can serve. Appari v. Court of Appeals, 3 a Resolution
promulgated on November 28, 2007, succinctly discusses what a "term" connotes, as
follows:
The word "term" in a legal sense means a fixed and definite period of time which the
law describes that an officer may hold an office. According to Mechem, the term of
office is the period during which an office may be held. Upon expiration of the officer’s term,
unless he is authorized by law to holdover, his rights, duties and authority as a public officer
must ipso facto cease. In the law of public officers, the most and natural frequent method by
which a public officer ceases to be such is by the expiration of the terms for which he was
elected or appointed. [Emphasis supplied].1avvphi1
A later case, Gaminde v. Commission on Audit, 4 reiterated that "[T]he term means the time
during which the officer may claim to hold office as of right, and fixes the interval after which
the several incumbents shall succeed one another."
The "limitation" under this first branch of the provision is expressed in the negative – "no
such official shall serve for more than three consecutive terms." This formulation – no more
than three consecutive terms – is a clear command suggesting the existence of an inflexible
rule. While it gives no exact indication of what to "serve. . . three consecutive terms" exactly
connotes, the meaning is clear – reference is to the term, not to the service that a public
official may render.1awphi1 In other words, the limitation refers to the term.
The second branch relates to the provision’s express initiative to prevent any circumvention
of the limitation through voluntary severance of ties with the public office; it expressly states
that voluntary renunciation of office "shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected." This declaration
complements the term limitation mandated by the first branch.
A notable feature of the second branch is that it does not textually state that voluntary
renunciation is the only actual interruption of service that does not affect "continuity of
service for a full term" for purposes of the three-term limit rule. It is a pure declaratory
statement of what does not serve as an interruption of service for a full term, but the phrase
"voluntary renunciation," by itself, is not without significance in determining constitutional
intent.
Josef Elvin Campos
The word "renunciation" carries the dictionary meaning of abandonment. To renounce is
to give up, abandon, decline, or resign.5 It is an act that emanates from its author, as
contrasted to an act that operates from the outside. Read with the definition of a "term" in
mind, renunciation, as mentioned under the second branch of the constitutional provision,
cannot but mean an act that results in cutting short the term, i.e., the loss of title to office.
The descriptive word "voluntary" linked together with "renunciation" signifies an act of
surrender based on the surenderee’s own freely exercised will; in other words, a loss of title
to office by conscious choice. In the context of the three-term limit rule, such loss of title is
not considered an interruption because it is presumed to be purposely sought to avoid the
application of the term limitation.
The following exchanges in the deliberations of the Constitutional Commission on the term
"voluntary renunciation" shed further light on the extent of the term "voluntary renunciation":
MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term
"voluntary renunciation" does not appear in Section 3 [of Article VI]; it also appears in
Section 6 [of Article VI].
MR DAVIDE. Yes.
MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the
Committee please enlighten us exactly what "voluntary renunciation" mean? Is this akin to
abandonment?
MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the
restriction by merely resigning at any given time on the second term.
MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more
general than abandonment and resignation?
MR. DAVIDE. It is more general, more embracing. 6
From this exchange and Commissioner Davide’s expansive interpretation of the term
"voluntary renunciation," the framers’ intent apparently was to close all gaps that an elective
official may seize to defeat the three-term limit rule, in the way that voluntary renunciation
has been rendered unavailable as a mode of defeating the three-term limit rule. Harking
back to the text of the constitutional provision, we note further that Commissioner Davide’s
view is consistent with the negative formulation of the first branch of the provision and the
inflexible interpretation that it suggests.
This examination of the wording of the constitutional provision and of the circumstances
surrounding its formulation impresses upon us the clear intent to make term limitation a high
priority constitutional objective whose terms must be strictly construed and which cannot be
defeated by, nor sacrificed for, values of less than equal constitutional worth. We view
preventive suspension vis-à-vis term limitation with this firm mindset.
b. Relevant Jurisprudence on the
Three-term Limit Rule
Other than the above-cited materials, jurisprudence best gives us a lead into the concepts
within the provision’s contemplation, particularly on the "interruption in the continuity of
service for the full term" that it speaks of.
Lonzanida v. Commission on Elections7 presented the question of whether the
disqualification on the basis of the three-term limit applies if the election of the public official
(to be strictly accurate, the proclamation as winner of the public official) for his supposedly
third term had been declared invalid in a final and executory judgment. We ruled that the
two requisites for the application of the disqualification (viz., 1. that the official concerned
has been elected for three consecutive terms in the same local government post; and 2.
that he has fully served three consecutive terms) were not present. In so ruling, we said:
The clear intent of the framers of the constitution to bar any attempt to circumvent the three-
term limit by a voluntary renunciation of office and at the same time respect the people’s
choice and grant their elected official full service of a term is evident in this provision.
Voluntary renunciation of a term does not cancel the renounced term in the computation of
the three term limit; conversely, involuntary severance from office for any length of time
short of the full term provided by law amounts to an interruption of continuity of service. The
petitioner vacated his post a few months before the next mayoral elections, not by voluntary
renunciation but in compliance with the legal process of writ of execution issued by the
COMELEC to that effect. Such involuntary severance from office is an interruption of
continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.
[Emphasis supplied]
Our intended meaning under this ruling is clear: it is severance from office, or to be exact,
loss of title, that renders the three-term limit rule inapplicable.
Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether
there had been a completed term for purposes of the three-term limit disqualification. These
Josef Elvin Campos
cases, however, presented an interesting twist, as their final judgments in the electoral
contest came after the term of the contested office had expired so that the elective officials
in these cases were never effectively unseated.
Despite the ruling that Ong was never entitled to the office (and thus was never validly
elected), the Court concluded that there was nevertheless an election and service for a full
term in contemplation of the three-term rule based on the following premises: (1) the final
decision that the third-termer lost the election was without practical and legal use and value,
having been promulgated after the term of the contested office had expired; and (2) the
official assumed and continuously exercised the functions of the office from the start to the
end of the term. The Court noted in Ong the absurdity and the deleterious effect of a
contrary view – that the official (referring to the winner in the election protest) would, under
the three-term rule, be considered to have served a term by virtue of a veritably
meaningless electoral protest ruling, when another actually served the term pursuant to a
proclamation made in due course after an election. This factual variation led the Court to
rule differently from Lonzanida.
In the same vein, the Court in Rivera rejected the theory that the official who finally lost the
election contest was merely a "caretaker of the office" or a mere "de facto officer." The
Court obeserved that Section 8, Article X of the Constitution is violated and its purpose
defeated when an official fully served in the same position for three consecutive terms.
Whether as "caretaker" or "de facto" officer, he exercised the powers and enjoyed the
perquisites of the office that enabled him "to stay on indefinitely."
Ong and Rivera are important rulings for purposes of the three-term limitation because of
what they directly imply. Although the election requisite was not actually present, the Court
still gave full effect to the three-term limitation because of the constitutional intent to strictly
limit elective officials to service for three terms. By so ruling, the Court signalled how
zealously it guards the three-term limit rule. Effectively, these cases teach us to strictly
interpret the term limitation rule in favor of limitation rather than its exception.
Adormeo v. Commission on Elections 10 dealt with the effect of recall on the three-term limit
disqualification. The case presented the question of whether the disqualification applies if
the official lost in the regular election for the supposed third term, but was elected in a recall
election covering that term. The Court upheld the COMELEC’s ruling that the official was
not elected for three (3) consecutive terms. The Court reasoned out that for nearly two
years, the official was a private citizen; hence, the continuity of his mayorship was disrupted
by his defeat in the election for the third term.
Socrates v. Commission on Elections 11 also tackled recall vis-à-vis the three-term limit
disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified
to run for a fourth term, he did not participate in the election that immediately followed his
third term. In this election, the petitioner Victorino Dennis M. Socrates was elected mayor.
Less than 1 ½ years after Mayor Socrates assumed the functions of the office, recall
proceedings were initiated against him, leading to the call for a recall election. Hagedorn
filed his certificate of candidacy for mayor in the recall election, but Socrates sought his
disqualification on the ground that he (Hagedorn) had fully served three terms prior to the
recall election and was therefore disqualified to run because of the three-term limit rule. We
decided in Hagedorn’s favor, ruling that:
After three consecutive terms, an elective local official cannot seek immediate reelection for
a fourth term. The prohibited election refers to the next regular election for the same office
following the end of the third consecutive term. Any subsequent election, like a recall
election, is no longer covered by the prohibition for two reasons. First, a subsequent
election like a recall election is no longer an immediate reelection after three consecutive
terms. Second, the intervening period constitutes an involuntary interruption in the continuity
of service.
When the framers of the Constitution debated on the term limit of elective local officials, the
question asked was whether there would be no further election after three terms, or whether
there would be "no immediate reelection" after three terms.
xxxx
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following
three consecutive terms. The Constitution, however, does not prohibit a subsequent
reelection for a fourth term as long as the reelection is not immediately after the end of the
third consecutive term. A recall election mid-way in the term following the third consecutive
term is a subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run
in any other subsequent election involving the same term of office. What the Constitution
prohibits is a consecutive fourth term.12
Josef Elvin Campos
Latasa v. Commission on Elections13 presented the novel question of whether a municipal
mayor who had fully served for three consecutive terms could run as city mayor in light of
the intervening conversion of the municipality into a city. During the third term, the
municipality was converted into a city; the cityhood charter provided that the elective
officials of the municipality shall, in a holdover capacity, continue to exercise their powers
and functions until elections were held for the new city officials. The Court ruled that the
conversion of the municipality into a city did not convert the office of the municipal mayor
into a local government post different from the office of the city mayor – the territorial
jurisdiction of the city was the same as that of the municipality; the inhabitants were the
same group of voters who elected the municipal mayor for 3 consecutive terms; and they
were the same inhabitants over whom the municipal mayor held power and authority as
their chief executive for nine years. The Court said:
This Court reiterates that the framers of the Constitution specifically included an exception
to the people’s freedom to choose those who will govern them in order to avoid the evil of a
single person accumulating excessive power over a particular territorial jurisdiction as a
result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as a municipal mayor
would obviously defeat the very intent of the framers when they wrote this exception.
Should he be allowed another three consecutive terms as mayor of the City of Digos,
petitioner would then be possibly holding office as chief executive over the same territorial
jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very
scenario sought to be avoided by the Constitution, if not abhorred by it. 14
Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no
three-term limit violation results if a rest period or break in the service between terms or
tenure in a given elective post intervened. In Lonzanida, the petitioner was a private citizen
with no title to any elective office for a few months before the next mayoral elections.
Similarly, in Adormeo and Socrates, the private respondents lived as private citizens for two
years and fifteen months, respectively. Thus, these cases establish that the law
contemplates a complete break from office during which the local elective official steps
down and ceases to exercise power or authority over the inhabitants of the territorial
jurisdiction of a particular local government unit.
Seemingly differing from these results is the case of Montebon v. Commission on
Elections,15 where the highest-ranking municipal councilor succeeded to the position of vice-
mayor by operation of law. The question posed when he subsequently ran for councilor was
whether his assumption as vice-mayor was an interruption of his term as councilor that
would place him outside the operation of the three-term limit rule. We ruled that an
interruption had intervened so that he could again run as councilor. This result seemingly
deviates from the results in the cases heretofore discussed since the elective official
continued to hold public office and did not become a private citizen during the interim. The
common thread that identifies Montebon with the rest, however, is that the elective official
vacated the office of councilor and assumed the higher post of vice-mayor by operation of
law. Thus, for a time he ceased to be councilor – an interruption that effectively placed him
outside the ambit of the three-term limit rule.
c. Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the "interruption" of a term exempting an elective
official from the three-term limit rule is one that involves no less than the involuntary loss of
title to office. The elective official must have involuntarily left his office for a length of time,
however short, for an effective interruption to occur. This has to be the case if the thrust of
Section 8, Article X and its strict intent are to be faithfully served, i.e., to limit an elective
official’s continuous stay in office to no more than three consecutive terms, using "voluntary
renunciation" as an example and standard of what does not constitute an interruption.
Thus, based on this standard, loss of office by operation of law, being involuntary, is an
effective interruption of service within a term, as we held in Montebon. On the other hand,
temporary inability or disqualification to exercise the functions of an elective post, even if
involuntary, should not be considered an effective interruption of a term because it does not
involve the loss of title to office or at least an effective break from holding office; the office
holder, while retaining title, is simply barred from exercising the functions of his office for a
reason provided by law.
An interruption occurs when the term is broken because the office holder lost the right to
hold on to his office, and cannot be equated with the failure to render service. The latter
occurs during an office holder’s term when he retains title to the office but cannot exercise
his functions for reasons established by law. Of course, the term "failure to serve" cannot be
Josef Elvin Campos
used once the right to office is lost; without the right to hold office or to serve, then no
service can be rendered so that none is really lost.
To put it differently although at the risk of repetition, Section 8, Article X – both by structure
and substance – fixes an elective official’s term of office and limits his stay in office to three
consecutive terms as an inflexible rule that is stressed, no less, by citing voluntary
renunciation as an example of a circumvention. The provision should be read in the context
of interruption of term, not in the context of interrupting the full continuity of the exercise of
the powers of the elective position. The "voluntary renunciation" it speaks of refers only to
the elective official’s voluntary relinquishment of office and loss of title to this office. It does
not speak of the temporary "cessation of the exercise of power or authority" that may occur
for various reasons, with preventive suspension being only one of them. To quote Latasa v.
Comelec:16
Indeed, [T]he law contemplates a rest period during which the local elective official steps
down from office and ceases to exercise power or authority over the inhabitants of the
territorial jurisdiction of a particular local government unit. [Emphasis supplied].
Preventive Suspension and the Three-Term Limit Rule
a. Nature of Preventive Suspension
Preventive suspension – whether under the Local Government Code, 17 the Anti-Graft and
Corrupt Practices Act,18 or the Ombudsman Act19 – is an interim remedial measure to
address the situation of an official who have been charged administratively or criminally,
where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or
liability.
Preventive suspension is imposed under the Local Government Code "when the evidence
of guilt is strong and given the gravity of the offense, there is a possibility that the
continuance in office of the respondent could influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence." Under the Anti-Graft and Corrupt
Practices Act, it is imposed after a valid information (that requires a finding of probable
cause) has been filed in court, while under the Ombudsman Act, it is imposed when, in the
judgment of the Ombudsman, the evidence of guilt is strong; and (a) the charge involves
dishonesty, oppression or grave misconduct or neglect in the performance of duty; or (b) the
charges would warrant removal from the service; or (c) the respondent’s continued stay in
office may prejudice the case filed against him.
Notably in all cases of preventive suspension, the suspended official is barred from
performing the functions of his office and does not receive salary in the meanwhile, but
does not vacate and lose title to his office; loss of office is a consequence that only results
upon an eventual finding of guilt or liability.
Preventive suspension is a remedial measure that operates under closely-controlled
conditions and gives a premium to the protection of the service rather than to the interests
of the individual office holder. Even then, protection of the service goes only as far as a
temporary prohibition on the exercise of the functions of the official’s office; the official is
reinstated to the exercise of his position as soon as the preventive suspension is lifted.
Thus, while a temporary incapacity in the exercise of power results, no position is vacated
when a public official is preventively suspended. This was what exactly happened to Asilo.
That the imposition of preventive suspension can be abused is a reality that is true in the
exercise of all powers and prerogative under the Constitution and the laws. The imposition
of preventive suspension, however, is not an unlimited power; there are limitations built into
the laws20 themselves that the courts can enforce when these limitations are transgressed,
particularly when grave abuse of discretion is present. In light of this well-defined
parameters in the imposition of preventive suspension, we should not view preventive
suspension from the extreme situation – that it can totally deprive an elective office holder
of the prerogative to serve and is thus an effective interruption of an election official’s term.
Term limitation and preventive suspension are two vastly different aspects of an elective
officials’ service in office and they do not overlap. As already mentioned above, preventive
suspension involves protection of the service and of the people being served, and prevents
the office holder from temporarily exercising the power of his office. Term limitation, on the
other hand, is triggered after an elective official has served his three terms in office without
any break. Its companion concept – interruption of a term – on the other hand, requires loss
of title to office. If preventive suspension and term limitation or interruption have any
commonality at all, this common point may be with respect to the discontinuity of service
that may occur in both. But even on this point, they merely run parallel to each other and
never intersect; preventive suspension, by its nature, is a temporary incapacity to render
service during an unbroken term; in the context of term limitation, interruption of service
occurs after there has been a break in the term.
Josef Elvin Campos
b. Preventive Suspension and the Intent of the Three-Term Limit Rule
Strict adherence to the intent of the three-term limit rule demands that preventive
suspension should not be considered an interruption that allows an elective official’s stay in
office beyond three terms. A preventive suspension cannot simply be a term interruption
because the suspended official continues to stay in office although he is barred from
exercising the functions and prerogatives of the office within the suspension period. The
best indicator of the suspended official’s continuity in office is the absence of a permanent
replacement and the lack of the authority to appoint one since no vacancy exists.
To allow a preventively suspended elective official to run for a fourth and prohibited term is
to close our eyes to this reality and to allow a constitutional violation through sophistry by
equating the temporary inability to discharge the functions of office with the interruption of
term that the constitutional provision contemplates. To be sure, many reasons exist,
voluntary or involuntary – some of them personal and some of them by operation of law –
that may temporarily prevent an elective office holder from exercising the functions of his
office in the way that preventive suspension does. A serious extended illness, inability
through force majeure, or the enforcement of a suspension as a penalty, to cite some
involuntary examples, may prevent an office holder from exercising the functions of his
office for a time without forfeiting title to office. Preventive suspension is no different
because it disrupts actual delivery of service for a time within a term. Adopting such
interruption of actual service as the standard to determine effective interruption of term
under the three-term rule raises at least the possibility of confusion in implementing this
rule, given the many modes and occasions when actual service may be interrupted in the
course of serving a term of office. The standard may reduce the enforcement of the three-
term limit rule to a case-to-case and possibly see-sawing determination of what an effective
interruption is.
c. Preventive Suspension and Voluntary Renunciation
Preventive suspension, because it is imposed by operation of law, does not involve a
voluntary act on the part of the suspended official, except in the indirect sense that he may
have voluntarily committed the act that became the basis of the charge against him. From
this perspective, preventive suspension does not have the element of voluntariness that
voluntary renunciation embodies. Neither does it contain the element of renunciation or loss
of title to office as it merely involves the temporary incapacity to perform the service that an
elective office demands. Thus viewed, preventive suspension is – by its very nature – the
exact opposite of voluntary renunciation; it is involuntary and temporary, and involves only
the actual delivery of service, not the title to the office. The easy conclusion therefore is that
they are, by nature, different and non-comparable.
But beyond the obvious comparison of their respective natures is the more important
consideration of how they affect the three-term limit rule.
Voluntary renunciation, while involving loss of office and the total incapacity to render
service, is disallowed by the Constitution as an effective interruption of a term. It is therefore
not allowed as a mode of circumventing the three-term limit rule.
Preventive suspension, by its nature, does not involve an effective interruption of a term and
should therefore not be a reason to avoid the three-term limitation. It can pose as a threat,
however, if we shall disregard its nature and consider it an effective interruption of a term.
Let it be noted that a preventive suspension is easier to undertake than voluntary
renunciation, as it does not require relinquishment or loss of office even for the briefest time.
It merely requires an easily fabricated administrative charge that can be dismissed soon
after a preventive suspension has been imposed. In this sense, recognizing preventive
suspension as an effective interruption of a term can serve as a circumvention more potent
than the voluntary renunciation that the Constitution expressly disallows as an interruption.
Conclusion
To recapitulate, Asilo’s 2004-2007 term was not interrupted by the Sandiganbayan-imposed
preventive suspension in 2005, as preventive suspension does not interrupt an elective
official’s term. Thus, the COMELEC refused to apply the legal command of Section 8,
Article X of the Constitution when it granted due course to Asilo’s certificate of candidacy for
a prohibited fourth term. By so refusing, the COMELEC effectively committed grave abuse
of discretion amounting to lack or excess of jurisdiction; its action was a refusal to perform a
positive duty required by no less than the Constitution and was one undertaken outside the
contemplation of law.21
WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the
assailed COMELEC rulings. The private respondent Wilfredo F. Asilo is declared
DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a prohibited
fourth term. Costs against private respondent Asilo.
Josef Elvin Campos
SO ORDERED.
ARTURO D. BRION
Associate Justice
Adormeo v. Comelec (G.R. No. 147927, 04 February 2002)

G.R. No. 147927 February 4, 2002
RAYMUNDO M. ADORMEO, petitioner,
vs.
COMMISSION ON ELECTIONS and RAMON Y. TALAGA, JR., respondents.
DECISION
QUISUMBING, J.:
Before us is a petition for certiorari, with a prayer for a writ of preliminary injunction and/or
temporary restraining order, to nullify and set aside the resolution dated May 9, 2001 of
public respondent Commission on Elections in Comelec SPA No. 01-055, which granted the
motion for reconsideration and declared private respondent Ramon Y. Talaga, Jr., qualified
to run for Mayor in Lucena City for the May 14, 2001 election. Petitioner prays that votes
cast in private respondent’s favor should not be counted; and should it happen that private
respondent had been already proclaimed the winner, his proclamation should be declared
null and void.
The uncontroverted facts are as follows:
Petitioner and private respondent were the only candidates who filed their certificates of
candidacy for mayor of Lucena City in the May 14, 2001 elections. Private respondent was
then the incumbent mayor.
Private respondent Talaga, Jr. was elected mayor in May 1992. He served the full term.
Again, he was re-elected in 1995-1998. In the election of 1998, he lost to Bernard G.
Tagarao. In the recall election of May 12, 2000, he again won and served the unexpired
term of Tagarao until June 30, 2001.
On March 2, 2001, petitioner filed with the Office of the Provincial Election Supervisor,
Lucena City a Petition to Deny Due Course to or Cancel Certificate of Candidacy and/or
Disqualification of Ramon Y. Talaga, Jr., on the ground that the latter was elected and had
served as city mayor for three (3) consecutive terms as follows: (1) in the election of May
1992, where he served the full term; (2) in the election of May 1995, where he again served
the full term; and, (3) in the recall election of May 12, 2000, where he served only the
unexpired term of Tagarao after having lost to Tagarao in the 1998 election. Petitioner
contended that Talaga’s candidacy as Mayor constituted a violation of Section 8, Article X of
the 1987 Constitution which provides:
Sec. 8. – The term of office of elective local officials, except barangay officials, which shall
was elected.
On March 9, 2001, private respondent responded that he was not elected City Mayor for
three (3) consecutive terms but only for two (2) consecutive terms. He pointed to his defeat
in the 1998 election by Tagarao. Because of his defeat the consecutiveness of his years as
mayor was interrupted, and thus his mayorship was not for three consecutive terms of three
years each. Respondent added that his service from May 12, 2001 until June 30, 2001 for
13 months and eighteen (18) days was not a full term, in the contemplation of the law and
the Constitution. He cites Lonzanida vs. COMELEC, G.R. No. 135150, 311 SCRA 602, 611
(1999), as authority to the effect that to apply disqualification under Section 8, Article X of
the Constitution, two (2) conditions must concur, to wit: (a) that the official concerned has
been elected for three consecutive terms in the same local government post, and (b) that he
has fully served three (3) consecutive terms.
On April 20, 2001, the COMELEC, through the First Division, found private respondent
Ramon Y. Talaga, Jr. disqualified for the position of city mayor on the ground that he had
already served three (3) consecutive terms, and his Certificate of Candidacy was ordered
withdrawn and/or cancelled.
On April 27, 2001, private respondent filed a motion for reconsideration reiterating that
"three (3) consecutive terms" means continuous service for nine (9) years and that the two
(2) years service from 1998 to 2000 by Tagarao who defeated him in the election of 1998
prevented him from having three consecutive years of service. He added that Tagarao’s
tenure from 1998 to 2000 could not be considered as a continuation of his mayorship. He
further alleged that the recall election was not a regular election, but a separate special
election specifically to remove incompetent local officials.
Josef Elvin Campos
On May 3, 2001, petitioner filed his Opposition to private respondent’s Motion for
Reconsideration stating therein that serving the unexpired term of office is considered as
one (1) term.1 Petitioner further contended that Article 8 of the Constitution speaks of "term"
and does not mention "tenure". The fact that private respondent was not elected in the May
1998 election to start a term that began on June 30, 1998 was of no moment, according to
petitioner, and what matters is that respondent was elected to an unexpired term in the
recall election which should be considered one full term from June 30, 1998 to June 30,
2001.
On May 9, 2001, the COMELEC en banc ruled in favor of private respondent Ramon Y.
Talaga, Jr.. It reversed the First Division’s ruling and held that 1) respondent was not
elected for three (3) consecutive terms because he did not win in the May 11, 1998
elections; 2) that he was installed only as mayor by reason of his victory in the recall
elections; 3) that his victory in the recall elections was not considered a term of office and is
not included in the 3-term disqualification rule, and 4) that he did not fully serve the three (3)
consecutive terms, and his loss in the May 11, 1998 elections is considered an interruption
in the continuity of his service as Mayor of Lucena City.
On May 19, 2001, after canvassing, private respondent was proclaimed as the duly elected
Mayor of Lucena City.
Petitioner is now before this Court, raising the sole issue:
WHETHER OR NOT PUBLIC RESPONDENT COMELEC ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
ISSUED ITS RESOLUTION DATED MAY 9, 2001, DECLARING PRIVATE RESPONDENT
RAMON Y. TALAGA, JR., QUALIFIED TO RUN FOR MAYOR IN LUCENA CITY FOR THE
MAY 14, 2001 ELECTIONS.2
Stated differently, was private respondent disqualified to run for mayor of Lucena City in the
May 14, 2001 elections?3 This issue hinges on whether, as provided by the Constitution, he
had already served three consecutive terms in that office.
Petitioner contends that private respondent was disqualified to run for city mayor by reason
of the three-term rule because the unexpired portion of the term of office he served after
winning a recall election, covering the period May 12, 2000 to June 30, 2001 is considered
a full term. He posits that to interpret otherwise, private respondent would be serving four
(4) consecutive terms of 10 years, in violation of Section 8, Article X of 1987
Constitution4 and Section 43 (b) of R.A. 7160, known as the Local Government Code.
Section 43. Term of Office.—
xxx
elective official concerned was elected.
Private respondent, in turn, maintains that his service as city mayor of Lucena is not
consecutive. He lost his bid for a second re-election in 1998 and between June 30, 1998 to
May 12, 2000, during Tagarao’s incumbency, he was a private citizen, thus he had not been
mayor for 3 consecutive terms.
In its comment, the COMELEC restated its position that private respondent was not elected
for three (3) consecutive terms having lost his third bid in the May 11, 1998 elections, said
defeat is an interruption in the continuity of service as city mayor of Lucena.
The issue before us was already addressed in Borja, Jr. vs. COMELEC, 295 SCRA 157,
169 (1998), where we held,
To recapitulate, the term limit for elective local officials must be taken to refer to the right to
be elected as well as the right to serve in the same elective position.1âwphi1 Consequently,
it is not enough that an individual has served three consecutive terms in an elective local
office, he must also have been elected to the same position for the same number of times
before the disqualification can apply. This point can be made clearer by considering the
following case or situation:
xxx
Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended
for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one
more term in the next election?
Yes, because he has served only two full terms successively.
xxx
Josef Elvin Campos
choice is not unduly curtailed.
Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said,
This Court held that the two conditions for the application of the disqualification must
concur: a) that the official concerned has been elected for three consecutive terms in the
same local government post and 2) that he has fully served three consecutive terms.
Accordingly, COMELEC’s ruling that private respondent was not elected for three (3)
consecutive terms should be upheld. For nearly two years he was a private citizen. The
continuity of his mayorship was disrupted by his defeat in the 1998 elections.
Patently untenable is petitioner’s contention that COMELEC in allowing respondent Talaga,
Jr. to run in the May 1998 election violates Article X, Section 8 of 1987 Constitution. 5 To
bolster his case, respondent adverts to the comment of Fr. Joaquin Bernas, a Constitutional
Commission member, stating that in interpreting said provision that "if one is elected
representative to serve the unexpired term of another, that unexpired, no matter how short,
will be considered one term for the purpose of computing the number of successive terms
allowed."6
As pointed out by the COMELEC en banc, Fr. Bernas’ comment is pertinent only to
members of the House of Representatives. Unlike local government officials, there is no
recall election provided for members of Congress. 7
Neither can respondent’s victory in the recall election be deemed a violation of Section 8,
Article X of the Constitution as "voluntary renunciation" for clearly it is
not.1âwphi1 In Lonzanida vs. COMELEC, we said:
…The second sentence of the constitutional provision under scrutiny states, "Voluntary
renunciation of office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which he was elected." The clear intent of the
framers of the constitution to bar any attempt to circumvent the three-term limit by a
voluntary renunciation of office and at the same time respect the people’s choice and grant
their elected official full service of a term is evident in this provision. Voluntary renunciation
of a term does not cancel the renounced term in the computation of the three term limit;
conversely, involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service. The petitioner vacated
his post a few months before the next mayoral elections, not by voluntary renunciation but
in compliance with the legal process of writ of execution issued by the COMELEC to that
effect. Such involuntary severance from office is an interruption of continuity of service and
thus, the petitioner did not fully serve the 1995-1998 mayoral term. 8
WHEREFORE, the instant petition is hereby DISMISSED. The resolution of public
respondent Commission on Elections dated May 9, 2001, in Comelec SPA No. 01-055 is
AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo,
Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.
Socrates v. Comelec (G.R. No. 154512, 12 November 2002)

G.R. No. 154512 November 12, 2002
VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBLY (PRA)
of Puerto Princesa City, PRA Interim Chairman Punong Bgy. MARK DAVID
HAGEDORN, PRA Interim Secretary Punong Bgy. BENJAMIN JARILLA, PRA
Chairman and Presiding Officer Punong Bgy. EARL S. BUENVIAJE and PRA
Secretary Punong Bgy. CARLOS ABALLA, JR. respondents.
-----------------------------
G.R. No. 154683 November 12, 2002
VICENTE S. SANDOVAL, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS, respondent.
-----------------------------
G.R. Nos. 155083-84 November 12, 2002
MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR., petitioners,
vs.
THE COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN, respondents.
DECISION
CARPIO, J.:
Josef Elvin Campos
The Case
Before us are consolidated petitions for certiorari 1 seeking the reversal of the resolutions
issued by the Commission on Elections ("COMELEC" for brevity) in relation to the recall
election for mayor of Puerto Princesa City, Palawan.
The Antecedents
On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the
Puerto Princesa convened themselves into a Preparatory Recall Assembly ("PRA" for
brevity) at the Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA
was convened to initiate the recall 2 of Victorino Dennis M. Socrates ("Socrates" for brevity)
who assumed office as Puerto Princesa's mayor on June 30, 2001. The members of the
PRA designated Mark David M. Hagedorn, president of the Association of Barangay
Captains, as interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity)
which declared its loss of confidence in Socrates and called for his recall. The PRA
requested the COMELEC to schedule the recall election for mayor within 30 days from
receipt of the Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-
010 (RC), to nullify and deny due course to the Recall Resolution.
On August 14, 2002, the COMELEC en banc 3 promulgated a resolution dismissing for lack
of merit Socrates' petition. The COMELEC gave due course to the Recall Resolution and
scheduled the recall election on September 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing
the calendar of activities and periods of certain prohibited acts in connection with the recall
election. The COMELEC fixed the campaign period from August 27, 2002 to September 5,
2002 or a period of 10 days.
On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of
candidacy for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for
brevity) filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify
Hagedorn from running in the recall election and to cancel his certificate of candidacy. On
August 30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a petition-in-
intervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On the same date, a
certain Genaro V. Manaay filed another petition, docketed as SPA No. 02-539, against
Hagedorn alleging substantially the same facts and involving the same issues. The petitions
were all anchored on the ground that "Hagedorn is disqualified from running for a fourth
consecutive term, having been elected and having served as mayor of the city for three (3)
consecutive full terms immediately prior to the instant recall election for the same post."
Subsequently, SPA Nos. 02-492 and 02-539 were consolidated.
In a resolution promulgated on September 20, 2002, the COMELEC's First
Division4 dismissed for lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared
Hagedorn qualified to run in the recall election. The COMELEC also reset the recall election
from September 7, 2002 to September 24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a resolution denying the
motion for reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution
declaring Hagedorn qualified to run in the recall election.
Hence, the instant consolidated petitions.
G.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14,
2002 in E.M. No. 02-010 (RC) which gave due course to the Recall Resolution and
scheduled the recall election on September 7, 2002.
Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall
Resolution. Socrates cites the following circumstances as legal infirmities attending the
convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the
PRA were notified of the meeting to adopt the resolution; (2) the proof of service of notice
was palpably and legally deficient; (3) the members of the PRA were themselves seeking a
new electoral mandate from their respective constituents; (4) the adoption of the resolution
was exercised with grave abuse of authority; and (5) the PRA proceedings were conducted
in a manner that violated his and the public's constitutional right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated
August 21, 2002 insofar as it fixed the recall election on September 7, 2002, giving the
candidates only a ten-day campaign period. He prayed that the COMELEC be enjoined
Josef Elvin Campos
from holding the recall election on September 7, 2002 and that a new date be fixed giving
the candidates at least an additional 15 days to campaign.
In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from
implementing Resolution No. 5673 insofar as it fixed the date of the recall election on
September 7, 2002. The Court directed the COMELEC to give the candidates an additional
fifteen 15 days from September 7, 2002 within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708
giving the candidates an additional 15 days from September 7, 2002 within which to
campaign. Thus, the COMELEC reset the recall election to September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September 20,
2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn
qualified to run for mayor in the recall election. They likewise prayed for the issuance of a
temporary restraining order to enjoin the proclamation of the winning candidate in the recall
election.
Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's
qualification to run for mayor in the recall election despite the constitutional and statutory
prohibitions against a fourth consecutive term for elective local officials.
In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from
proclaiming any winning candidate in the recall election until further orders from the Court.
Petitioners were required to post a P20,000 bond.
On September 27, 2002, Socrates filed a motion for leave to file an attached petition for
intervention seeking the same reliefs as those sought by Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in the recall election with
20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241
votes, respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the
winning candidate and to allow him to assume office to give effect to the will of the
electorate.
On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for
intervention.
The Issues
The issues for resolution of the Court are:
1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion
in giving due course to the Recall Resolution and scheduling the recall election for
mayor of Puerto Princesa.
2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the
recall election of Puerto Princesa on September 24, 2002.
In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of
discretion in fixing a campaign period of only 10 days has become moot. Our Resolution of
September 3, 2002 and COMELEC Resolution No. 5708 granted an additional 15 days for
the campaign period as prayed for by petitioner.
First Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in
upholding the Recall Resolution despite the absence of notice to 130 PRA members and
the defective service of notice to other PRA members. The COMELEC, however, found that
–
"On various dates, in the month of June 2002, the proponents for the Recall of incumbent
City Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the
members thereof pursuant to Section 70 of the Local Government Code. Copies of the said
notice are in Volumes I and II entitled Notices to PRA. Likewise, Proof of Service for each of
the said notices were attached to the Petition and marked as Annex "G" of Volumes II and
III of the Petition.
Notices were likewise posted in conspicuous places particularly at the Barangay Hall.
Photos establishing the same were attached to the Petition and marked as Annex "H". The
proponents likewise utilized the broadcast mass media in the dissemination of the
convening of the PRA.
Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list
of 25 names of provincial elective officials, print and broadcast media practitioners, PNP
officials, COMELEC city, regional and national officials, and DILG officials].
xxx
The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002
certified that upon a 'thorough and careful verification of the signatures appearing in PRA
Josef Elvin Campos
Resolution 01-02, x x x the majority of all members of the PRA concerned approved said
resolution.' She likewise certified 'that not a single member/signatory of the PRA
complained or objected as to the veracity and authenticity of their signatures.'
The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement
dated 10 July 2002, stated, 'upon proper review, all documents submitted are found in
order.'
The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following
recommendations:
'This Office, after evaluating the documents filed, finds the instant Petition sufficient in form
and substance. That the PRA was validly constituted and that the majority of all members
thereof approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M.
Socrates.'
x x x ."
This Court is bound by the findings of fact of the COMELEC on matters within the
competence and expertise of the COMELEC, unless the findings are patently erroneous. In
Malonzo v. COMELEC,5 which also dealt with alleged defective service of notice to PRA
members, we ruled that –
"Needless to state, the issue of propriety of the notices sent to the PRA members is factual
in nature, and the determination of the same is therefore a function of the COMELEC. In the
absence of patent error, or serious inconsistencies in the findings, the Court should not
disturb the same. The factual findings of the COMELEC, based on its own assessments
and duly supported by gathered evidence, are conclusive upon the court, more so, in the
absence of a substantiated attack on the validity of the same."
In the instant case, we do not find any valid reason to hold that the COMELEC's findings of
fact are patently erroneous.
Socrates also claims that the PRA members had no authority to adopt the Recall Resolution
on July 2, 2002 because a majority of PRA members were seeking a new electoral mandate
in the barangay elections scheduled on July 15, 2002. This argument deserves scant
consideration considering that when the PRA members adopted the Recall Resolution their
terms of office had not yet expired. They were all de jure sangguniang barangay members
with no legal disqualification to participate in the recall assembly under Section 70 of the
Local Government Code.
Socrates bewails that the manner private respondents conducted the PRA proceedings
violated his constitutional right to information on matters of public concern. Socrates,
however, admits receiving notice of the PRA meeting and of even sending his
representative and counsel who were present during the entire PRA proceedings.
Proponents of the recall election submitted to the COMELEC the Recall Resolution, minutes
of the PRA proceedings, the journal of the PRA assembly, attendance sheets, notices sent
to PRA members, and authenticated master list of barangay officials in Puerto Princesa.
Socrates had the right to examine and copy all these public records in the official custody of
the COMELEC. Socrates, however, does not claim that the COMELEC denied him this
right. There is no legal basis in Socrates' claim that respondents violated his constitutional
right to information on matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the
validity of the Recall Resolution and in scheduling the recall election on September 24,
2002.
Second Issue: Hagedorn's qualification to run for mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is found in Section 8, Article X of the
Constitution, which states:
"Section 8. The term of office of elective local officials, except barangay officials, which shall
was elected."
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as
the Local Government Code, which provides:
"Section 43. Term of Office. – (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in
the same position. Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of service for the full term for which
the elective official was elected."
Josef Elvin Campos
These constitutional and statutory provisions have two parts. The first part provides that an
elective local official cannot serve for more than three consecutive terms. The clear intent is
that only consecutive terms count in determining the three-term limit rule. The second part
states that voluntary renunciation of office for any length of time does not interrupt the
continuity of service. The clear intent is that involuntary severance from office for any length
of time interrupts continuity of service and prevents the service before and after the
interruption from being joined together to form a continuous service or consecutive terms.
following the end of the third consecutive term. Any subsequent election, like a recall
election, is no longer covered by the prohibition for two reasons. First, a subsequent
election like a recall election is no longer an immediate reelection after three consecutive
terms. Second, the intervening period constitutes an involuntary interruption in the continuity
of service.
When the framers of the Constitution debated on the term limit of elective local officials, the
question asked was whether there would be no further election after three terms, or whether
there would be "no immediate reelection" after three terms. This is clear from the following
deliberations of the Constitutional Commission:
"THE PRESIDENT: The Acting Floor Leader is recognized.
MR. ROMULO:6 We are now ready to discuss the two issues, as indicated on the
blackboard, and these are Alternative No. I where there is no further election after a
total of three terms and Alternative No. 2 where there is no immediate reelection
after three successive terms."7
The Journal of the Constitutional Commission reports the following manifestation on the
term of elective local officials:
"MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely: 1)
Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2
(no immediate reelection after three successive terms)." 8
The framers of the Constitution used the same "no immediate reelection" question in voting
for the term limits of Senators9 and Representatives of the House.10
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following
three consecutive terms. The Constitution, however, does not prohibit a subsequent
reelection for a fourth term as long as the reelection is not immediately after the end of the
third consecutive term. A recall election mid-way in the term following the third consecutive
term is a subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run
in any other subsequent election involving the same term of office. What the Constitution
prohibits is a consecutive fourth term. The debates in the Constitutional Commission
evidently show that the prohibited election referred to by the framers of the Constitution is
the immediate reelection after the third term, not any other subsequent election.
If the prohibition on elective local officials is applied to any election within the three-year full
term following the three-term limit, then Senators should also be prohibited from running in
any election within the six-year full term following their two-term limit. The constitutional
provision on the term limit of Senators is worded exactly like the term limit of elective local
officials, thus:
"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." 11
In the debates on the term limit of Senators, the following exchange in the Constitutional
Convention is instructive:
"GASCON:12 I would like to ask a question with regard to the issue after the second
term. We will allow the Senator to rest for a period of time before he can run again?
DAVIDE:13 That is correct.
GASCON: And the question that we left behind before - if the Gentleman will
remember - was: How long will that period of rest be? Will it be one election which is
three years or one term which is six years?
DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the
view that during the election following the expiration of the first 12 years, whether
such election will be on the third or on the sixth year thereafter, this particular
member of the Senate can run. So, it is not really a period of hibernation for six
years. That was the Committee's stand.
Josef Elvin Campos
GASCON: So, effectively, the period of rest would be three years at the
least."14 (Emphasis supplied)
The framers of the Constitution thus clarified that a Senator can run after only three
years15 following his completion of two terms. The framers expressly acknowledged that the
prohibited election refers only to the immediate reelection, and not to any subsequent
election, during the six-year period following the two term limit. The framers of the
Constitution did not intend "the period of rest" of an elective official who has reached his
term limit to be the full extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not
an immediate reelection after his third consecutive term which ended on June 30, 2001. The
immediate reelection that the Constitution barred Hagedorn from seeking referred to the
regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections
and served in full his three consecutive terms as mayor of Puerto Princesa. Under the
Constitution and the Local Government Code, Hagedorn could no longer run for mayor in
the 2001 elections. The Constitution and the Local Government Code disqualified
Hagedorn, who had reached the maximum three-term limit, from running for a fourth
consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001
elections.16 Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After
Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall
election of September 24, 2002 when he won by 3,018 votes over his closest opponent,
Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto
Princesa was Socrates. During the same period, Hagedorn was simply a private citizen.
This period is clearly an interruption in the continuity of Hagedorn's service as mayor, not
because of his voluntary renunciation, but because of a legal prohibition. Hagedorn's three
consecutive terms ended on June 30, 2001. Hagedorn's new recall term from September
24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive
terms as mayor. One cannot stitch together Hagedorn's previous three-terms with his new
recall term to make the recall term a fourth consecutive term because factually it is not. An
involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke
the continuity or consecutive character of Hagedorn's service as mayor.
In Lonzanida v. Comelec,17 the Court had occasion to explain interruption of continuity of
service in this manner:
"x x x The second sentence of the constitutional provision under scrutiny states, "Voluntary
continuity of service for the full term for which he was elected." The clear intent of the
framers of the constitution to bar any attempt to circumvent the three-term limit by a
voluntary renunciation of office and at the same time respect the people's choice and grant
their elected official full service of a term is evident in this provision. Voluntary renunciation
of a term does not cancel the renounced term in the computation of the three-term limit;
conversely, involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service. x x x." (Emphasis
supplied)
In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full
term of three years, constituted an interruption in the continuity of his service as mayor. The
Constitution does not require the interruption or hiatus to be a full term of three years. The
clear intent is that interruption "for any length of time," as long as the cause is involuntary, is
sufficient to break an elective local official's continuity of service.
In the recent case of Adormeo v. Comelec and Talaga, 18 a unanimous Court reiterated the
rule that an interruption consisting of a portion of a term of office breaks the continuity of
service of an elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two
consecutive full terms as mayor of Lucena City. In his third bid for election as mayor in
1998, Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12, 2000,
Talaga won and served the unexpired term of Tagarao from May 12, 2000 to June 30,
2001. When Talaga ran again for mayor in the 2001 elections, Raymundo Adormeo, the
other candidate for mayor, petitioned for Talaga's disqualification on the ground that Talaga
had already served three consecutive terms as mayor.
Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of his
previous two terms so that he was deemed to have already served three consecutive terms
as mayor. The Court ruled that Talaga was qualified to run in the 2001 elections, stating that
the period from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted
the continuity of his service as mayor. Talaga's recall term as mayor was not consecutive to
Josef Elvin Campos
his previous two terms because of this interruption, there having been a break of almost two
years during which time Tagarao was the mayor.
We held in Adormeo that the period an elective local official is out of office interrupts the
continuity of his service and prevents his recall term from being stitched together as a
seamless continuation of his previous two consecutive terms. In the instant case, we
likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity
of service and prevents his recall term from being stitched together as a seamless
continuation of his previous three consecutive terms. The only difference between Adormeo
and the instant case is the time of the interruption. In Adormeo, the interruption occurred
after the first two consecutive terms. In the instant case, the interruption happened after the
first three consecutive terms. In both cases, the respondents were seeking election for a
fourth term.
In Adormeo, the recall term of Talaga began only from the date he assumed office after
winning the recall election. Talaga's recall term did not retroact to include the tenure in
office of his predecessor. If Talaga's recall term was made to so retroact, then he would
have been disqualified to run in the 2001 elections because he would already have served
three consecutive terms prior to the 2001 elections. One who wins and serves a recall term
does not serve the full term of his predecessor but only the unexpired term. The period of
time prior to the recall term, when another elective official holds office, constitutes an
interruption in continuity of service. Clearly, Adormeo established the rule that the winner in
the recall election cannot be charged or credited with the full term of three years for
purposes of counting the consecutiveness of an elective official's terms in office.
In the same manner, Hagedorn's recall term does not retroact to include the tenure in office
of Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall
election if the recall term is made to retroact to June 30, 2001, for only then can the recall
term constitute a fourth consecutive term. But to consider Hagedorn's recall term as a full
term of three years, retroacting to June 30, 2001, despite the fact that he won his recall term
only last September 24, 2002, is to ignore reality. This Court cannot declare as consecutive
or successive terms of office which historically and factually are not.
Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction that
unduly curtails the freedom of the people to choose their leaders through popular elections.
The concept of term limits is in derogation of the sovereign will of the people to elect the
leaders of their own choosing. Term limits must be construed strictly to give the fullest
possible effect to the sovereign will of the people. As this Court aptly stated in Borja, Jr. v.
Comelec:
"Thus, a consideration of the historical background of Art. X, §8 of the Constitution reveals
monopolization of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years
there should be no further reelection for local and legislative officials. Instead, they adopted
the alternative proposal of Commissioner Christian Monsod that such officials be simply
barred from running for the same position in the succeeding election following the expiration
of the third consecutive term. Monsod warned against 'prescreening candidates [from]
whom the people will choose' as a result of the proposed absolute disqualification,
considering that the draft constitution contained provisions 'recognizing people's
power.'"19 (Emphasis supplied)
A necessary consequence of the interruption of continuity of service is the start of a new
term following the interruption. An official elected in recall election serves the unexpired
term of the recalled official. This unexpired term is in itself one term for purposes of counting
the three-term limit. This is clear from the following discussion in the Constitutional
Commission:
"SUAREZ:20 For example, a special election is called for a Senator, and the Senator newly
elected would have to serve the unexpired portion of the term. Would that mean that serving
the unexpired portion of the term is already considered one term? So, half a term, which is
actually the correct statement, plus one term would disqualify the Senator concerned from
running? Is that the meaning of this provision on disqualification, Madam President?
DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will serve
only for the unexpired portion of that particular term plus one more term for the Senator and
two more terms for the Members of the Lower House." 21
Although the discussion referred to special elections for Senators and Representatives of
the House, the same principle applies to a recall election of local officials. Otherwise, an
elective local official who serves a recall term can serve for more than nine consecutive
Josef Elvin Campos
years comprising of the recall term plus the regular three full terms. A local official who
serves a recall term should know that the recall term is in itself one term although less than
three years. This is the inherent limitation he takes by running and winning in the recall
election.
In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall
election for mayor of Puerto Princesa because:
1. Hagedorn is not running for immediate reelection following his three consecutive
terms as mayor which ended on June 30, 2001;
2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June
30, 2001 to September 24, 2002 during which time he was a private citizen;
3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be
made to retroact to June 30, 2001 to make a fourth consecutive term because
factually the recall term is not a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest possible effect to the
right of the electorate to choose their leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED.
The temporary restraining order issued by this Court on September 24, 2002 enjoining the
proclamation of the winning candidate for mayor of Puerto Princesa in the recall election of
September 24, 2002 is lifted. No costs.
SO ORDERED.
Bellosillo, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio-Morales,
and Callejo, Sr., JJ., concur.
Davide, Jr., C.J., see concurring and dissenting opinion.
Puno, J., see concurring opinion.
Vitug, J., in the result.
Mendoza, J., in the result, without to the filing of separate opinion.
Austria-Martinez, J., on leave.
Corona, J., no part - prior consultation.
Azcuna, J., joins the separate opinion of C.J. Davide.
CONCURRING AND DISSENTING OPINION

DAVIDE, JR., C.J.:
I concur with the opinion and conclusion of Mr. Justice Antonio T. Carpio in G.R. No.
154512 and G.R. No. 154683. The Commission on Elections (COMELEC) committed no
grave abuse of discretion in giving due course to the Recall Resolution. Dismissal then of
G.R. No. 154512 is inevitable. This notwithstanding, I still hold on to my dissenting view in
G.R. No. 111511 (Garcia, et al. vs. COMELEC, et al., 227 SCRA 100, 121 [1993]) that the
provision on the preparatory recall assembly in Section 70 of the Local Government Code of
1991 is unconstitutional.
Our issuance of the Resolution of 3 September 2002 in G.R. No. 154683 enjoining the
COMELEC from implementing its Resolution No. 5673 insofar as it fixed the recall election
on 7 September 2002, and the subsequent Resolution of the COMELEC giving the
candidates an additional campaign period of fifteen days from 7 September 2002 rendered
moot and academic the principal issue in G.R. No. 154683. The dismissal of the petition
therein is also in order.
However, I regret I cannot concur with the argument and conclusion relative to G.R. Nos.
155083-84. I respectfully submit that private respondent Edward S. Hagedorn is disqualified
from running for the position of Mayor of Puerto Princesa City in the recall election in
question.
Section 8 of Article X of the Constitution expressly provides:
SEC. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. 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.
Paragraph (b), Section 43 of R.A. No. 7160 (The Local Government Code) restates
this constitutional restriction, thus: SEC. 43. Term of office. –
…(b) No local elective official shall serve for more than three (3) consecutive terms
in the same position. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of service for the full term for
which the elective official was elected.
Josef Elvin Campos
Section 8 of Article X of the Constitution was not found in the Report of the
Committee on Local Governments of the Constitutional Commission of 1986. It was
introduced at the plenary session by Commissioner Hilario G. Davide, Jr.
Commenting thereon in his book entitled "The Intent of 1986 Constitution Writers"
(1995 ed., p. 699), Commissioner Joaquin Bernas states:
This provision was not found among the Committee's proposals but came as an
amendment proposed by Commissioner Davide. It was readily accepted without
much discussion and formally approved.
Section 8 sets the duration of a term at three years, and prohibits elective local
officials from serving for more than three consecutive terms.
Pursuant to the second paragraph of Section 1 of Article XVIII (The Transitory
Provision) of the Constitution, and Executive Order No. 270, as amended by R.A.
No. 6636, the first local election, that is, the election for the first term under the
Constitution for elective local officials, was on 18 January 1988. By express provision
of Section 5 of R.A. No. 6636, in relation to Section 2 of Article XVIII of the
Constitution, that term expired at noon of 30 June 1992. The second election, i.e.,
the election for the second term of elective local officials which expired at noon of 30
June 1995, for elective local officials, was on the second Monday of May 1992
pursuant to R.A. No. 7166 (An Act Providing for Synchronized National and Local
Elections and for Electoral Reforms). The third election, i.e., for the third term which
expired at noon of 30 June 1998, was on the second Monday of May 1995, pursuant
to Section 2 of R.A. No. 7166. The fourth election, or for the fourth term which
expired at noon of 30 June 2001, was on the second Monday of May 1998. The fifth
election, i.e., for the fifth term which would expire at noon of 30 June 2004, was on
the second Monday of May 2001.Conformably with Section 8 of Article X of the
Constitution and Section 43(b) of R.A. No. 7160, a local official elected in the first
local election of 18 January 1988 may be reelected in the synchronized elections in
May 1992 and in May 1995. He could not seek another reelection in the May 1998
election because that would have been his fourth term. Similarly, a local official who
was elected in the May 1992 election could be reelected in the May 1995 and May
1998 elections.
Private respondent Hagedorn was first elected as City Mayor of Puerto Princesa City in the
May 1992 election. He was reelected in the May 1995 and May 1998 elections. His third
term, by virtue of his election in the May 1998 election, expired on 30 June 2001. Therefore,
he was constitutionally and statutorily barred from seeking reelection In the May 2001
election, which would have been his fourth term.
The term of office covered by the May 2001 election is up to 30 June 2004 . Section 8 of
Article X of the Constitution and Section 43(b) of R.A. No. 7160 are clear in what is
prohibited, which is the fourth term. Nothing can be clearer from the wordings thereof: "the
term of office of elective local officials ... shall be three years and no such official shall serve
for more that three consecutive terms." In short, an elective local official who has served
three consecutive terms, like Hagedorn, is disqualified from seeking re-election for the
succeeding fourth term. The provision bars the holding of four consecutive terms.
The ponencia is then correct when it holds that the three-term limit bars an immediate
reelection for a fourth term. But I disagree when it rules that in the case of Hagedorn he did
not seek an immediate reelection for a fourth term because he was not a candidate for
reelection in the May 2001 election. It forgets that what would have been his fourth term by
virtue of the May 2001 election was for the period from 30 June 2001 to 30 June 2004. The
flaw in the ruling results from an apparent confusion between term and election, the root
cause of which is the attempt to distinguish "voluntary renunciation" of office from
"involuntary severance" from office and the term of office to which it relates.
Let me first discuss the matter of whether the Constitutional Commission did approve the
rule of "no Immediate reelection after three consecutive terms." In support of its affirmative
conclusion the ponencia quotes the Manifestation of Commissioner Romulo as entered in
the Journal of the Constitutional Commission, thus:
MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely: a)
Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2
(no immediate reelection after three successive terms).
This is inaccurate. What actually happened was that the issue was originally for elective
national and local officials. However, the Commission decided to consider first the term of
the members of Congress; and to defer the discussion on the term of elective local officials
Josef Elvin Campos
until the Commission would consider the report of the Committee on Local Governments.
On this point I quote the pertinent portions of Volume Two, pages 238-245 of the Record of
the Constitutional Commission of its proceedings on 25 July 1986:
THE PRESIDENT. Maybe it will be of help we Just remind ourselves that what we
have before us now is the report of the Committee on the Legislative. Therefore,
maybe we should confine ourselves first to what is covered by the report which is the
term of office of the Senators and the Representatives.And with respect to the local
officials, let us await the report of the Committee on Local Governments as to its
recommendation on this matter.
MR. RODRIGO. As a matter of fact, I will go further than that, it is my belief, as
regards local officials, that we should leave this matter to the legislative.
THE PRESIDENT. So what is the pleasure now of the Acting Floor Leader or of the
Chairman of the Committee on the Legislative?
MR. RODRIGO. I wonder if the two proponents, Madam President, will agree that we
first talk about the term of office of the Representatives because we are now
discussing the legislative department.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I will agree really that this matter should relate only to the term of
office of the Representatives.
THE PRESIDENT. But are we agreed on these two proposals - the one of
Commissioner Garcia where there is no further election after a total of three terms
and the other where there is no Immediate reelection after three successive terms?
MR. OPLE. Madam President, originally if I remember right, the Commission decided
to consider the synchronization of elections. And from that original commitment, we
proceeded to fix the terms and decided related questions within the context of
synchronization. Are we now abandoning the original task of synchronization which
could only be fully settled in terms of delimitations on the proposed terms of the
President and the Vice-President, the Members of Congress and the local officials,
or do we want to postpone the synchronization task to a later time after we hear from
the Committee on Local Governments and the other concerned committees?
THE PRESIDENT. What does the Acting Floor Leader say to this particular question
of Commissioner Ople?
MR. ROMULO. In a way, Madam President, we have settled the synchronization
task, because we have decided on the officials' absolute terms. All we are really
talking about now is whether or not they are eligible for reelection, and I think those
are separable issues.
MR. OPLE. If they are separable, and we have already settled the synchronization
task, then I think that is something to be thankful about. But considering the
immediate business at hand, is it the wish of the Acting Floor Leader that the election
of the local officials should be eliminated from the consideration of those two
choices?
MR. ROMULO. Yes. I think the sense of the body now is to limit this choice to the
Members of the House of Representatives.
MR. OPLE. And do the manifestations of both Commissioners Garcia and Monsod
still stand after the elimination of the election of the local officials?
MR. ROMULO. Yes, I think so.
…
MR. DAVIDE. Madam President, as worded, It is a personal disqualification.
MR. ROMULO. We are now ready to vote, Madam President.
THE PRESIDENT. We are now ready to vote by ballot. Let us distribute the ballots.
Anyway the voting would take only about 10 minutes.
The session is suspended.
It was 3:40 p.m.
At this juncture, pieces of paper were distributed, and the Commissioners wrote
down their votes.
THE PRESIDENT. The session is resumed.
Josef Elvin Campos
MR. GASCON. Madam President, may I have a clarification before we count the
ballots. The voting now is just for Representatives. We are not speaking of the term
of office of the Senators yet. Is that correct?
THE PRESIDENT. The term of office of the Senators was disposed of this morning.
This voting now is only for Representatives.
MR. GASCON. I think the Issue of whether the Senators could run again for election
after their two consecutive terms or 12 years after a lapse of a period of time has not
yet been finalized.
THE PRESIDENT. I beg the Commissioner's pardon.
MR. GASCON. Is this voting just for Congressmen?
THE PRESIDENT. Yes.
The Secretary-General will now please proceed to count the votes.
COUNTING OF BALLOTS
THE SECRETARY-GENERAL. Madam President, we have here 43 ballots cast. We
will now start the counting.
Alternative No. 1 - no further election after a total of three terms: /////-/////-/////-//
Alternative No. 2 - no immediate reelection after three successive
terms: /////-/////-/////-/////-/////-/
THE PRESIDENT. The results show 17 votes for Alternative No. 1 and 26 votes for
Alternative No. 2; Alternative No. 2 is approved.
What does the Acting Floor Leader say?
MR. ROMULO. Alternative No. 2 has won, Madam President. It seems there are
some doubts as to the term of office of the Senators, so I propose that we similarly
vote on that to end any doubt. It was my understanding this morning that when we
voted for the term of office of the Senators, they would not be perpetually
disqualified.
THE PRESIDENT. From the transcripts, it appears here that with respect to
Senators, 22 votes went to Scheme No. II; that is, with one reelection. This is already
a majority. So, does the Acting Floor Leader propose that we vote again?
MR. ROMULO. The question is whether or not that will be perpetual, Madam
President, or after resting for six years they can run again. That is the question that
is not answered. I am talking of the Senators.
THE PRESIDENT. This morning, Scheme No. I, without reelection, has 3 votes;
Scheme No. II, with one reelection - 22 votes; Scheme No. III, no limit on reelection -
17 votes.
MR. REGALADO. Madam President.
MR. RODRIGO. Madam President.
THE PRESIDENT. May we first clarify this from the Secretary-General?
MR. ROMULO. The question is whether or not in voting for the term of six years with
one reelection, the Senator is perpetually disqualified, so that is a similar question to
what we had posed with regard to the House of Representatives.
THE PRESIDENT. In other words, after serving with one reelection, whether or not
he is perpetually disqualified after serving 12 years?
MR. ROMULO. Yes, Madam President.
THE PRESIDENT. Yes, Commissioner Rodrigo is recognized.
MR. RODRIGO. Or, if after one reelection, he is perpetually disqualified or he can
hibernate - the very word used - for six years and then run again for reelection but
not consecutive, not immediate. In other words, he is entitled to one immediate
reelection.
REV. RIGOS. Another point, Madam President.
MR. RODRIGO. And then, after that, if there is a gap, when he is not a Senator, then
he can run for the same office.
REV. RIGOS. Madam President.
THE PRESIDENT. Yes, Commissioner Rigos is recognized.
REV. RIGOS. In relation to that, if he will be allowed to run again as Senator after a
period of hibernation, we have to clarify how long that should be. It could be three
years, because in the proposed scheme, every three years we can elect the
Senators.
MR. RODRIGO. Yes, Madam President, it can be three years.
Josef Elvin Campos
THE PRESIDENT. I will suspend the session again so as to allow the parties to
compare with the Acting Floor Leader so that we will know what we are going to vote
on.
The session is suspended
It was 3:58 p.m.
THE PRESIDENT. The session is resumed.
The Acting Floor Leader is recognized.
MR. ROMULO. Madam President, we are now ready to vote on the question of the
Senators, and the schemes are as follows: The first scheme is, no further election
after two terms; the - second scheme is, no immediate reelection after two
successive terms.
Madam President, inasmuch as the principles applicable here are the same as those
for the House of Representatives, I move that we go directly to the voting and forego
any further discussions.
THE PRESIDENT. Please distribute the ballots for this particular item for Senators.
Are we ready now?
The Secretary-General will please count the ballots.
COUNTING OF BALLOTS
THE SECRETARY-GENERAL. We have 43 ballots here, Madam President. We
shall now begin to count.
THE PRESIDENT. Please proceed.
THE SECRETARY-GENERAL, reading:
Scheme No. I - /////-/////-//
Scheme No. II - /////-/////-/////-/////-/////-/////-//
THE PRESIDENT. The results show 12 votes for Scheme No. I and 32 votes for
Scheme No. II; Scheme No. II approved.
All the results will be considered by the Committee on the Legislative in preparation
of their report.
So can we leave this matter now?
The corresponding proposal on the three-term limit for elective local officials without
immediate reelection was taken up by the Constitutional Commission much later or
specifically on 16 August 1986. On this point, the pertinent portions of Vol. Three,
pages 406-408, Record of the Constitutional Commission, read as follows:
MR. RAMA. Madam President, I ask that Commissioner Davide be recognized.
MR. DAVIDE. Thank you, Madam President.
After Section 4, I propose to Insert a new section to be denominated later as
Section 5. It provides as follows: THE TERM OF OFFICE OF ELECTIVE
LOCAL OFFICIALS, EXCEPT BARANGAY OFFICIALS, WHICH SHALL BE
DETERMINED BY LAW, SHALL BE THREE YEARS AND NO SUCH
OFFICIAL SHALL SERVE FOR MORE THAN THREE CONSECUTIVE
TERMS. 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. This is in accordance with the mandate of the
Commission when we voted on the terms of officials up to local officials,
excluding the term of barangay officials which was a very specific exception.
MR. NOLLEDO. One clarificatory question, Madam President. What will be the term
of the office of barangay officials as provided for?
MR. DAVIDE. As may be determined by law.
MR. NOLLEDO. As provided for in the Local Government Code.
MR. DAVIDE. Yes.
MR. NOLLEDO. We accept the amendment. The Committee accepts the
amendment.
…
THE PRESIDENT. May we have the reaction of the Committee?
MR. NOLLEDO. The Committee accepts the amendment, as amended, Madam
President.
THE PRESIDENT. Is there any other comment?
MR. OPLE. Madam President.
THE PRESIDENT. Commissioner Ople is recognized.'
Josef Elvin Campos
MR. OPLE. May we ask the Committee to read the proposed amendment now.
MR. NOLLEDO. May we ask Commissioner Davide to read the new section.
MR. DAVIDE. THE TERM OF OFFICE OF ELECTIVE LOCAL OFFICIALS, EXCEPT
BARANGAY OFFICIALS, WHICH SHALL BE DETERMINED BY LAW, SHALL BE
THREE YEARS AND N SUCH OFFICIAL 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.
…
THE PRESIDENT. Then let us vote first on the Davide amendment.
Is there any objection to this new section proposed by Commissioner Davide which
has been read to the body? (Silence) The Chair hears none; the proposed section is
approved.
I wish to add that the Constitutional Commission debates on the issue of "no
immediate reelection" after three consecutive terms for members of Congress clearly
indicated that the "no immediate reelection" after the 3-term limit would equally apply
to the elective local officials. This accounted for the immediate acceptance by the
Committee on Local Governments of the aforementioned Amendment of
Commissioner Davide, which is now Section 8 of Article X of the Constitution. These
debates clearly showed the Intent of the Commission that the ban against an
immediate reelection after three consecutive terms applies to the fourth term, i.e., the
term immediately following the three consecutive terms, to be filled up by the regular
election for such fourth term. For one to be able to run again after three consecutive
terms, he has to rest for the entire immediately succeeding fourth term. On the next
fifth term he can run again to start a new series of three consecutive terms. We
quote these pertinent portions of the debates, recorded in Volume Two, pages 232-
233 of the Record of the Constitutional Commission:
MR. ROMULO. Madam President, the following are the various alternatives:Scheme
No. I is without reelection; Scheme No. II is with one reelection; and Scheme No. III
is reelection without limit. This is for 'the Senators.
At this juncture, pieces of paper were distributed and the Commissioners wrote down
their votes.
THE PRESIDENT. The Chair asks the Chairman, Commissioner Davide, to please
consolidate the results of the voting for President and Vice-President.
THE SECRETARY-GENERAL. Madam President, we are ready. THE PRESIDENT.
The Secretary-General will please proceed.
COUNTING OF BALLOTS
THE SECRETARY-GENERAL, reading:
Scheme No. I - ///
Scheme No. II - /////-/////-/////-/////-//
Scheme No. Ill - /////-/////-/////-//
THE PRESIDENT. The results show 3 votes for Scheme No. I; 22 votes for Scheme
No. II; and 17 votes for Scheme No. III; Scheme No. II is approved.
MR. ROMULO. Madam President, the next position is for the House of
Representatives, the Congressmen. I would assume we can use the same choices.
Does any one want any variation?
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. For the record, I would like to ask Commissioner Romulo some
questions.
MR. ROMULO. Yes.
MR. RODRIGO. Scheme No. II says "the Vice-President - with one reelection."
THE PRESIDENT. No, that is for Senators.'
MR. GUINGONA. Madam President.
THE PRESIDENT. Yes, Commissioner Guenon is recognized.
MR. GUINGONA. May I suggest one more scheme - with two reelections for the
Members of the House of Representatives?
THE PRESIDENT. So, we shall distribute ballots again.
MR. ROMULO. While the ballots are being distributed, may I read the following four
propositions for Congressmen: '
Scheme No. I, without reelection.
Scheme No. II, with one reelection.
Josef Elvin Campos
Scheme No. III, with two reelections.
Scheme No. IV, no limit on reelection. I
MR. DE LOS REYES. Madam President.
THE PRESIDENT. Commissioner de los Reyes is recognized.
MR. DE LOS REYES. The term of the Members of the House of Representatives will
be three years, according to the first voting; the term of the Senators, if they are
entitled to one reelection, will be 12 years. So, in order for a Member of the House of
Representatives to have also 12 years, he must be entitled to three reelections. I
propose another scheme with three reelections to make it equal.
MR. RODRIGO. Will the Gentleman maintain the number there and add that as No.
V. I filled up my ballot already and if I erase, this might be disqualified as a marked
ballot.
THE PRESIDENT. Commissioner Rodrigo may change his ballot.
MR. DE CASTRO. Madam President.
THE PRESIDENT. Commissioner de Castro Is recognized.
MR. DE CASTRO. The situation stated by Commissioner de los Reyes is apparently
covered by Scheme No. II which we agreed upon earlier. The situation will not
happen, because both the Senators and the Congressmen will have five (5) years on
the first election. So, the possibility that the Senators will have a longer term than the
Congressmen is remote.
MR. MONSOD. Madam President.
THE PRESIDENT. Commissioner Monsod is recognized.
MR. MONSOD. Madam President, it occurred to us that the three alternatives are
not really mutually exclusive. Can we have only these three: without reelection, with
reelection and with unlimited reelection? We are asking here for plurality only,
Madam President. Can we eliminate?
THE PRESIDENT. In other words, we shall have the same schemes as those for
Senators; without reelection, with one reelection and unlimited reelection.
REV. RIGOS. Madam President, besides we have already submitted our ballots.
MR. MONSOD. I withdraw my proposal, Madam President.
MR. GARCIA. Madam President, I would suggest that the two schemes with the
highest votes be voted upon to get the key majority. For example, if the schemes
with two reelections and no limit to election get the highest number of votes, then we
vote again to get the key majority.
THE PRESIDENT. We will do that. Are all the votes in?
COUNTING OF BALLOTS
THE SECRETARY-GENERAL. Madam President, we have 43 ballots.
THE PRESIDENT. The Secretary-General will please proceed. THE SECRETARY-
GENERAL, reading:
Scheme No. I - 0
Scheme No. II - //
Scheme No. III - /////-/////-/////-/////-/
Scheme No. IV - /////-/////-////
Scheme No. V - /////-/
THE PRESIDENT. The results show no vote for Scheme No. I; 2 votes for Scheme
No. II; 21 votes for Scheme No. III; 14 votes for Scheme No. IV; and 6 votes for
Scheme No. V; Scheme No. III is approved.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO.. I would like to ask a question for clarification.
THE PRESIDENT. Please proceed.
MR. RODRIGO. If the Members of the Lower House can have two reelections, does
this mean two immediate reelections, or a term of nine consecutive years? Let us
say that a Member of the Lower House has been reelected twice; that means he will
serve for nine years. Can he let three years elapse and then run again?
THE PRESIDENT. We will ask the Chairman of the Committee on the Legislative to
answer the question.
MR. DAVIDE. That is correct, Madam President, because two reelections mean two
successive reelections. So he cannot serve beyond nine consecutive years.
MR. RODRIGO. Consecutively?
MR. DAVIDE. Consecutively.
MR. RODRIGO. But after nine years he can let one …
MR. DAVIDE. He can rest. He can hibernate for three years.
Josef Elvin Campos
MR. RODRIGO. And run again.
MR. DAVIDE. He can run again.
MR. RODRIGO. And again have nine years as a maximum.
MR. DAVIDE. I do not know if that is also the thinking of Commissioner Garcia who
is the main proponent of this proposal on two reelections. I would seek the opinion of
Commissioner Garcia for the record. (underscoring supplied for emphasis.)
The dichotomy made in the ponencia between "voluntary renunciation of the office" as used
in Section 8 of Article X of the Constitution and Section 43(b) of R.A. No. 7160 and
"involuntary severance from office" is unnecessary, if not misplaced. From the discussion in
the ponencia, the latter is made to apply to the banned term, i.e., the fourth term
immediately following three consecutive terms. Speaking now of Hagedorn, he cannot have
suffered "involuntary severance from office" because there was nothing to be severed; he
was not a holder of an office either in a de jure or de facto capacity. He knew he was
disqualified from seeking a third reelection to office. Disqualification is, definitely, not
synonymous with involuntary severance. Even if we concede that involuntary severance is
an act which interrupts the continuity of a term for purposes of applying the three-term
principle the rule laid down in Lonzanida vs. COMELEC (311 SCRA 609), cited in the
ponencia, page 17, is not applicable in the case of Hagedorn. The involuntary severance
referred to in that case was one that took place during any of the three terms; hence, the
term during which it occurred should be excluded in the computation. In the case of
Hagedorn, no such involuntary severance took place during any of his three terms brought
about by his election in 1992 and reelections in 1995 and 1998.
More importantly, the voluntary renunciation referred to in Section 8, Article X of the
Constitution and Section 43(b) of R.A. No. 7160 is one that takes place at any time during
either the first, second, or third term of the three consecutive terms. This is very clear from
the last clause of Section 8, Article X of the Constitution, which reads: " shall not be
was elected." The purpose of the provision is to prevent an elective local official from
voluntarily resigning from office for the purpose of circumventing the rule on the belief that
the term during which he resigned would be excluded in the counting of the three-term rule.
In short, the provision excluded is intended to impose a penalty on one who flouts the rule
or make a mockery of it by the simple act of resigning. Thus, applying it in the case of
Hagedorn, even if he voluntarily resigned on his third term, he would still be barred from
seeking reelection in the May 2001 election.
Hagedorn cannot likewise avail of the ruling in Adormeo vs. COMELEC (G.R. No. 147927, 4
February 2002) because in that case Talaga did not win in his second reelection bid, or for
a third term, in the May 1998 elections. He won in the recall election of 12 May
2000. Hagedorn, as earlier stated, fully served three successive terms.
Neither can we allow Hagedorn to take refuge under the exchange between Commissioner
Suarez and Commissioner Davide found on page 592, Vol. II of the Record of the
Constitutional Commission and quoted on pages 19-20 of the ponencia:
SUAREZ: For example, a special election is called for a Senator, and the Senator
newly elected would have to serve the unexpired portion of the term. Would that
mean that serving the unexpired portion of the term is already considered one term?
So, half a term, which is actually the correct statement, plus one term would
disqualify the Senator concerned from running? Is that the meaning of this provision
on disqualification, Madam President?
DAVIDE: Yes, because we speak of "term" And if there is a special election, he will
serve only for the unexpired portion of that particular term plus one more term for the
Senator and two more terms for the Members of the Lower House.
On the contrary, it is clear from the views of Commissioners Suarez and Davide that the
term of office of one who is elected in a special election is considered one term for purposes
of determining the three consecutive terms.
A declaration that Hagedorn is qualified to seek reelection in a recall election to remove the
Mayor who was elected for a term for which Hagedorn was constitutionally and statutorily
disqualified to be reelected to or, to hold Is to subvert the rationale of the three-consecutive-
term rule and make a mockery of it. Worse, it abets destructive endless partisan politics and
unsound governance. An elective local official who is disqualified to seek a fourth term
because of the three-term limit but obsessed to hold on to power would spend the first year
of the fourth term campaigning for the recall of the incumbent in the second year of said
term. This would' not be a problem If the disqualified official has a solid following and a
strong political machinery. Interestingly, in this case, as stated on page 3 of the ponencia,
the President of the Association of Barangay Captains of Puerto Princesa City is one Mark
Josef Elvin Campos
David M. Hagedorn and he was designated by the Preparatory Recall Assembly as interim
Chairman.
I therefore vote to grant the petition in G.R. Nos. 155083-84, to set aside the resolution of
the COMELEC holding private respondent Edward Hagedorn a qualified candidate for the
position of Mayor of Puerto Princesa City in the recall election, and to declare him
DISQUALIFIED from seeking reelection for a fourth term or from being a candidate for
Mayor in the recall election in question.
CONCURRING OPINION
PUNO, J.:
The correctness of the decision so ably written by Mr. Justice Carpio speaks for itself.
Nonetheless, the complex constitutional dimensions of the issue for resolution compels this
humble concurring opinion. The issue is whether private respondent Hagedorn is
disqualified from running in the September 24, 2002 recall election for mayor of Puerto
Princesa City and from serving the unexpired portion of the 2001-2004 mayoralty term
considering that he has thrice been consecutively elected and has served three full terms as
Puerto Princesa City mayor from 1992-1998. In illuminating the gray interstices of this
election case, prudence dictates that ". . . where the sovereignty of the people is at stake,
we must not only be legally right but also politically correct." 1
Private respondent Hagedorn was elected mayor of Puerto Princesa City, Palawan in 1992,
1995 and 1998 and served three full terms. In the May 14, 2001 national and local
elections, he ran for governor for the Province of Palawan and lost. Petitioner-intervenor
Victorino Dennis M. Socrates was elected mayor of Puerto Princesa City.
On July 2, 2002, three hundred twelve (312) out of five hundred twenty-eight (528)
members of the Barangay Officials of Puerto Princesa City convened themselves into a
Preparatory Recall Assembly to initiate the recall of Mayor Socrates. On August 21, 2002,
COMELEC promulgated Resolution No. 5673 prescribing a calendar of activities for the
recall election. Two days after, Hagedorn filed his certificate of candidacy for mayor in said
election.
On August 27, 2002, petitioners Adovo and Gilo sought for Hagedorn's immediate
disqualification on the ground that he had served three consecutive full terms as mayor of
Puerto Princesa City immediately prior to the recall election and was thus proscribed by the
Constitution from running in said election. On August 30, 2002, petitioner Ollave, Sr.
intervened to disqualify Hagedorn on the same ground.
The recall election was set on September 24, 2002. On September 20, 2002, public
respondent COMELEC's First Division denied the petitions for Hagedorn's disqualification.
The following day, petitioners Adovo, Gilo and Ollave, Sr. filed a motion for reconsideration
imploring the COMELEC en banc to reverse the September 20 resolution. On September
23, 2002, the COMELEC en banc affirmed the resolution of the First Division holding
Hagedorn qualified to run in the recall election.
On September 24, 2002, petitioners Adovo, Gilo and Ollave, Sr. sought recourse in this
Court with a Very Urgent Petition for Certiorari and Prohibition with Preliminary Injunction
and Prayer for Temporary Restraining Order. On the same date, Mayor Socrates filed a
petition-in-intervention to nullify the September 23 resolution of the COMELEC.
The petitions before us raise the following issues:
"I.
THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT
RESPONDENT HAGEDORN IS NOT DISQUALIFIED FROM RUNNING FOR THE
POSITION OF MAYOR OF PUERTO PRINCESA CITY IN THE SCHEDULED RECALL
ELECTION, THE CLEAR AND UNAMBIGUOUS CONSTITUTIONAL AND STATUTORY
PROHIBITION AGAINST A FOURTH CONSECUTIVE TERM FOR LOCAL ELECTIVE
OFFICIALS NOTWITHSTANDING.
II.
THE HONORABLE COMELEC GRAVELY ERRED AND ABUSED ITS DISCRETION
WHEN IT PROCEEDED TO DIVIDE A SINGLE TERM OF OFFICE INTO TWO.
III.
THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AND
VIOLATED THE INTENT AND PURPOSE FOR HOLDING THE SCHEDULED RECALL
ELECTIONS FOR THE POSITION OF MAYOR OF PUERTO PRINCESA CITY AND THE
CONSTITUTIONAL AND STATUTORY BAR AGAINST A FOURTH CONSECUTIVE
TERM.
IV.
Josef Elvin Campos
THE HONORABLE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED
THAT RESPONDENT HAGEDORN IS NOT DISQUALIFIED FROM RUNNING IN THE
UPCOMING RECALL ELECTIONS AS HIS INELIGIBILITY IS NOT APPARENT UNDER
SECTIONS 65 AND 68 OF THE OMNIBUS ELECTION CODE, SECTIONS 39 AND 40 OF
RA 7160 (LOCAL GOVERNMENT CODE), AND RULES 23 AND 25 OF THE COMELEC
RULES OF PROCEDURE.
V.
THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT
RULED THAT RESPONDENT HAGEDORN IS QUALIFIED TO RUN IN THE RECALL
ELECTION EVEN IF HE STANDS DISQUALIFIED FROM SERVING UNDER A FOURTH
CONSECUTIVE TERM AS SUCH IS ALLEGEDLY NOT THE PROVINCE OF THE
INSTANT DISQUALIFICATION PROCEEDINGS.
VI.
THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT
ISSUED A DEFECTIVE AND CLEARLY VOID RESOLUTION."2
The foregoing issues may be reduced to the singular issue of whether or not private
respondent Hagedorn is disqualified from running in the September 24, 2002 recall election
and serving as mayor of Puerto Princesa City considering that he has been thrice
consecutively elected and has served three full terms in that position from 1992 to 2001.
I find the petitions devoid of merit.
Art. X, Sec. 8 of the Constitution provides:
"Sec. 8: The term of office of elective local officials, except barangay officials, which shall be
was elected."
This constitutional provision is restated in the Local Government Code of 1991, to wit:
"Sec. 43. Term of Office. -. . . (b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the continuity of service for the full term for
which the elective official concerned was elected."
We have not interpreted Art. X, Sec. 8 of the Constitution in the recall election context of the
cases at bar. It is imperative to distill the intent of the framers of the Constitution and the
people who ratified it.3 Mere reliance on the surface meaning of the words of the above
provision, however, will not suffice to capture this elusive intent. Thus, we turn to the
proceedings and debates of the Constitutional Commission (ConCom) as an extrinsic aid to
interpretation.4 The Record of the Constitutional Commission shows that Art. X. Sec. 8 was
readily accepted by the Commissioners without much discussion; 5 nonetheless, their
debates on setting the term limit for Representatives show that the rationale for the limit
applies to both Representatives and elective local officials. We quote at length the relevant
portions of the debates, to wit:
"MR. GARCIA. I would like to advocate the proposition that no further election for
local and legislative officials be allowed after a total of three terms or nine years. I
have four reasons why I would like to advocate this proposal, which are as follows:
(1) to prevent monopoly of political power; (2) to broaden the choice of the people;
(3) so that no one is indispensable in running the affairs of the country; (4) to create
a reserve of statesmen both in the national and local levels. May I explain briefly
these four reasons.
First: To prevent monopoly of political power - Our history has shown that
prolonged stay in public office can lead to the creation of entrenched
preserves of political dynasties. In this regard, I would also like to advocate
that immediate members of the families of public officials be barred from
occupying the same position being vacated.
Second: To broaden the choice of the people - Although individuals have the
right to present themselves for public office, our times demand that we create
structures that will enable more aspirants to offer to serve and to provide the
people a broader choice so that more and more people can be enlisted to the
cause of public service, not just limited only to those who may have the
reason or the advantage due to their position.
Third: No one is indispensable in running the affairs of the country – After the
official's more than a decade or nearly a decade of occupying the same public
office, I think we should try to encourage a more team-oriented consensual
approach to governance favored by a proposal that will limit public servants to
Josef Elvin Campos
occupy the same office for three terms. And this would also favor not relying
on personalities no matter how heroic, some of whom, in fact, are now in our
midst.
Lastly, the fact that we will not reelect people after three terms would also
favor the creation of a reserve of statesmen both in the national and local
levels.
Turnovers in public office after nine years will ensure that new ideas and new
approaches will be welcome. Public office will no longer be a preserve of
conservatism and tradition. At the same time, we will create a reserve of statesmen,
both in the national and local levels, since we will not deprive the community of the
wealth of experience and advice that could come from those who have served for
nine years in public office.
Finally, the concept of public service, if political dynasty symbolized by prolonged
stay in particular public offices is barred will have fuller meaning. It will not be limited
only to those who directly hold public office, but also to consultative bodies organized
by the people, among whom could be counted those who have served in public
office with accomplishment and distinction, for public service must no longer be
limited only to public office.
xxx xxx xxx
MR. MONSOD. Madam President, I was reflecting on this issue earlier and I asked
to speak because in this draft Constitution, we are recognizing people power. We
have said that now there is a new awareness, a new kind of voter, a new kind of
Filipino. And yet at the same time, we are prescreening candidates among whom
they will choose. We are saying that this 48-member Constitutional Commission has
decreed that those who have served for a period of nine years are barred from
running for the same position.
The argument is that there may be other positions. But there are some people
who are very skilled and good at legislation, and yet are not of a national
stature to be Senators. They may be perfectly honest, perfectly competent
and with integrity. They get voted into office at the age of 25, which is the age
we provide for Congressmen. And at 34 years old we put them to pasture.
Second, we say that we want to broaden the choices of the people. We are
talking here only of congressional or senatorial seats. We want to broaden
the people's choice but we are making a prejudgment today because we
exclude a certain number of people. We are, in effect, putting an additional
qualification for office - that the officials must not have served a total of more
than a number of years in their lifetime.
Third, we are saying that by putting people to pasture, we are creating a
reserve of statesmen, but the future participation of these statesmen is
limited. Their skills may only be in some areas, but we are saying that they
are going to be barred from running for the same position.
Madam President, the ability and capacity of a statesman depend as well on the day-
to-day honing of his skills and competence, in intellectual combat, in concern and
contact with the people, and here we are saying that he is going to be barred from
the same kind of public service.
I do not think it is in our place today to make such a very important and momentous
decision with respect to many of our countrymen in the future who may have a lot
more years ahead of them in the service of their country.
If we agree that we will make sure that these people do not set up structures that will
perpetuate them, then let us give them this rest period of three years or whatever it
is. Maybe during that time, we would even agree that their fathers or mothers or
relatives of the second degree should not run. But let us not bar them for life after
serving the public for a number of years.
xxx xxx xxx
MR. OPLE. . . . The principle involved is really whether this Commission shall
impose a temporary or a perpetual disqualification on those who have served their
terms in accordance with the limits on consecutive service as decided by the
Constitutional Commission. I would be very wary about the Commission exercising a
sort of omnipotent power in order to disqualify those who will already have served
their terms from perpetuating themselves in office. I think the Commission achieves
its purpose in establishing safeguards against the excessive accumulation of power
as a result of consecutive terms. We do put a gap on consecutive service - in the
case of the President, six years; in the case of the Vice-President, unlimited; and in
Josef Elvin Campos
the case of the Senators, one reelection. In the case of the Members of Congress,
both from the legislative districts and from the party list and sectoral representation,
this is now under discussion and later on the policy concerning local officials will be
taken up by the Committee on Local Governments. The principle remains the same.
I think we want to prevent future situations where, as a result of continuous service
and frequent reelections, officials from the President down to the municipal mayor
tend to develop a proprietary interest in their positions and to accumulate those
powers and perquisites that permit them to stay on indefinitely or to transfer these
posts to members of their families in a subsequent election. I think that is taken care
of because we put a gap on the continuity or unbroken service of all of these
officials. But were we now (to) decide to put these prospective servants of the people
or politicians, if we want to use the coarser term, under a perpetual disqualification, I
have a feeling that we are taking away too much from the people, whereas we
should be giving as much to the people as we can in terms of their own freedom of
choice.
I think the veterans of the Senate and of the House of Representatives here will say
that simply getting nominated on a party ticket is a very poor assurance that the
people will return them to the Senate or to the House of Representatives. There are
many casualties along the way of those who want to return to their office, and it is
the people's decision that matters. They judge whether or not a Soc Rodrigo, a
Sumulong, a Padilla, an Alonto and a Rosales, after a first and second term, should
go back to the Senate. That is a prerogative of the people that we should not take
away from them -the right to judge those who have served. In any case, we already
take away from the people the freedom to vote for the third termers because we say
that a Senator, say, Mr. Rodrigo, is only good for twelve years. But if he wants to be
like Cincinnatus, if he is called back by his people to serve again, let us say for a
period of six years – which Commissioner Davide called a period of hibernation
which is spent at his fishpond in Bulacan, Bulacan - because there is a new situation
in the country that fairly impels the people to summon him back, like Cincinnatus in
the past, then there will no longer be any Cincinnatus.
That is not perhaps a very important point, but I think we already have succeeded in
striking a balance of policies, so that the structures, about which Commissioner
Garcia expressed a very legitimate concern, could henceforth develop to redistribute
opportunities, both in terms of political and economic power, to the great majority of
the people, because very soon, we will also discuss the multiparty system. We have
unshackled the Philippine politics from the two-party system, which really was the
most critical support for the perpetuation of political dynasties in the Philippines. That
is quite a victory, but at the same time, let us not despise the role of political parties.
The strength of democracy will depend a lot on how strong our democratic parties
are, and a splintering of all these parties so that we fall back on, let us say,
nontraditional parties entirely will mean a great loss to the vitality and resiliency of
our democracy...
xxx xxx xxx
BISHOP BACANI. . . . I think when we voted on the provision that the illiterate be
allowed to vote and when we proposed in this Constitutional Commission for
initiative as a way also of empowering our people to engage in the legislative
exercise, we are really presupposing the political maturity of our people. Why is it
that that political maturity seems now to be denied by asking that we should put a
constitutional bar to a further election of any Representative after a term of three
years? Why should we not leave that to the premise accepted by practically
everybody here that our people are politically mature? Should we use this
assumption only when it is convenient for us, and not when it may also lead to a
freedom of choice for the people and for politicians who may aspire to serve longer?
xxx xxx xxx
MR. GARCIA. I would like to answer Commissioner Bacani. We put a constitutional
bar to reelection of any Representative basically because of the undue advantage of
the incumbent. It is not because of lack of trust in the people. We realize from history
that Mexico fought a revolution simply because of the issue of reelection. No
reeleccion, sufragio universal. Basically, it is because of the undue advantage of the
incumbent that he accumulates power, money, party machine or patronage. As
regards what Commissioner Aquino has said, politics is not won by ideals alone; it is
won by solid organizing work by organizations that have the capacity to do so; and
normally the incumbent has all the advantages. . .
Josef Elvin Campos
xxx xxx xxx
THE SECRETARY-GENERAL. Madam President, we have here 43 ballots cast. We
will now start the counting.
Alternative No. 1 - no further election after a total of three terms: /////-/////-/////-//
Alternative No. 2 - no immediate reelection after three successive
terms: /////-/////-/////-/////-/////-/" 6 (emphasis supplied)
In several cases, this Court was guided by the proceedings of the ConCom in
construing Art. X, Sec. 8 of the Constitution in relation to Section 43(b) of the Local
Government Code of 1991. Different from the issue presented by the cases at bar,
however, the question in those cases was what constitutes a "term" for purposes of
counting the three consecutive terms allowed under Art. X, Sec. 8. It is apropos to
revisit these cases to aid us in extracting the intent behind said Constitutional
provision and properly apply it to the unique case of private respondent Hagedorn.
The maiden case was Borja, Jr. v. Commission on Elections and Jose T.
Capco7 which involved the 1998 mayoralty election in Pateros. In 1989, private
respondent Capco became mayor by operation of law upon the death of the
incumbent, Cesar Borja. In 1992, he was elected mayor for a term ending in 1995. In
1995, he was reelected mayor for another term of three years ending in June 1998.
In March 1998, he filed his certificate of candidacy for the May 1998 mayoralty
election of Pateros. Petitioner Borja, Jr., another candidate for mayor, sought
Capco's disqualification on the ground that by June 30, 1998, Capco would have
already served as mayor for three consecutive terms and would therefore be
ineligible to serve for another term. The COMELEC en banc declared Capco eligible
to run for mayor, thus Borja, Jr. sought recourse in this Court. In dismissing the
petition, we considered the historical background of Art. X, Sec. 8 of the Constitution,
viz:
"…a consideration of the historical background of Article X, §8 of the Constitution
reveals that the members of the Constitutional Commission were as much
concerned with preserving the freedom of choice of the people as they were with
preventing the monopolization of political power. Indeed, they rejected a proposal put
forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms
or nine years there should be no further reelection for local and legislative officials.
Instead, they adopted the alternative proposal of Commissioner Christian Monsod
that such officials be simply barred from running for the same position in the
succeeding election following the expiration of the third consecutive term (2
RECORD OF THE CONSTITUTIONAL COMMISSION 236-243 [Session of July 25,
1986] . . .). Monsod warned against 'prescreening candidates [from] whom the
people will choose' as a result of the proposed absolute disqualification, considering
that the draft constitution contained provisions 'recognizing people's power.'
xxx xxx xxx
Commission. The first is the notion of service of term, derived from the concern
about the accumulation of power as a result of a prolonged stay in office. The
second is the idea of election, derived from the concern that the right of the people to
choose whom they wish to govern them be preserved. (emphasis supplied)
xxx xxx xxx
To recapitulate, the term limit for elective local officials must be taken to refer to the
right to be elected as well as the right to serve in the same elective position.
Consequently, it is not enough that an individual has served three consecutive terms
in an elective local office, he must also have been elected to the same position for
the same number of times before the disqualification can apply. This point can be
made clearer by considering the following cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the
incumbent. Six months before the next election, he resigns and is twice elected thereafter.
Can he run again for mayor in the next election?
Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not actually served
three full terms in all for the purpose of applying the term limit. Under Art. X, §8, voluntary
renunciation of the office is not considered as an interruption in the continuity of his service
for the full term only if the term is one "for which he was elected." Since A is only completing
the service of the term for which the deceased and not he was elected, A cannot be
considered to have completed one term. His resignation constitutes an interruption of the
full term.
Josef Elvin Campos
xxx xxx xxx
...the mayor is entitled to run for reelection because the two conditions for the application of
the disqualification provisions have not concurred, namely, that the local official concerned
has been elected three consecutive times and that he has fully served three consecutive
terms. In the first case, even if the local official is considered to have served three full terms
notwithstanding his resignation before the end of the first term, the fact remains that he has
not been elected three times. . .
Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total
failure of the two conditions to concur for the purpose of applying Art. X, § 8. Suppose he is
twice elected after that term, is he qualified to run again in the next election?
Yes, because he was not elected to the office of mayor in the first term but simply found
himself thrust into it by operation of law. Neither had he served the full term because he
only continued the service, interrupted by the death, of the deceased mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to
run a third time for reelection would be not only to falsify reality but also to unduly restrict
the right of the people to choose whom they wish to govern them. If the vice-mayor turns
out to be a bad mayor, the people can remedy the situation by simply not reelecting him for
another term. But if, on the other hand, he proves to be a good mayor, there will be no way
the people can return him to office (even if it is just the third time he is standing for
reelection) if his service of the first term is counted as one for the purpose of applying the
term limit.
choice is not unduly curtailed."8 (emphasis supplied)
We reiterated the Borja ruling in Lonzanida v. Commission on Elections, et al. 9 which
involved the election for mayor of San Antonio, Zambales. Prior to the May 8, 1995
elections, petitioner Romeo Lonzanida served two consecutive terms as municipal mayor of
San Antonio, Zambales. In the May 1995 elections, he ran for mayor, was proclaimed
winner, and assumed office. His proclamation was, however, contested by his opponent
Juan Alvez in an election protest filed before the Regional Trial Court of Zambales which
rendered a decision declaring a failure of elections. Upon appeal of the decision to the
COMELEC, Alvez was declared the duly elected mayor of San Antonio. In February 1998,
the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, and Alvez
served the remainder of the term.
Lonzanida filed his certificate of candidacy for the May 11, 1998 election for mayor of San
Antonio. His opponent Eufemio Muli filed with the COMELEC a petition to disqualify
Lonzanida on the ground that he had already served three consecutive terms in the same
office and was thus prohibited from running in the upcoming election. On May 13, 1998,
Lonzanida was proclaimed winner. COMELEC ruled that Lonzanida was disqualified as his
assumption to office in 1995, although he was unseated before the expiration of the term,
was considered one full term for purposes of counting the three term limit under the
Constitution and the Local Government Code of 1991.
On appeal to this Court, we ruled, viz:
"It is not disputed that the petitioner was previously elected and served two consecutive
terms as mayor of San Antonio, Zambales prior to the May 1995 mayoral elections. In the
May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed
winner. He assumed office and discharged the rights and duties of mayor until March 1998
when he was ordered to vacate the post by reason of the COMELEC decision dated
November 13, 1997 on the election protest against the petitioner which declared his
opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining
portion of the 1995-1998 mayoral term.
The two requisites for the application of the three term rule are absent. First, the petitioner
cannot be considered as having been duly elected to the post in the May 1995 elections,
and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of
voluntary relinquishment of office. After a re-appreciation and revision of the contested
ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the
May 1995 mayoral elections and his previous proclamation as a winner was declared null
and void. His assumption of office as mayor cannot be deemed to have been by reason of a
valid election but by reason of a void proclamation...
Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term
because he was ordered to vacate his post before the expiration of the term. The
respondents' contention that the petitioner should be deemed to have served one full term
Josef Elvin Campos
from May 1995- 1998 because he served the greater portion of that term has no legal basis
to support it; it disregards the second requisite for the application of the disqualification, i.e.,
that he has fully served three consecutive terms.
In sum, the petitioner was not the duly elected mayor and he did not hold office for the full
term; hence, his assumption of office from May 1995 to March 1998 cannot be counted as a
term for purposes of computing the three term limit." 10 (emphasis supplied)
Finally, in the recent case of Adormeo v. COMELEC, et al., 11 we ruled that a mayor who
assumed office via a recall election and served the unexpired portion of the mayoralty term
is not considered to have served a full term for purposes of applying the three term limit. In
this case, therein private respondent Ramon Talaga, Jr. was elected mayor in May 1992
and served the full term. In 1995, he was reelected and again served the full term. In 1998,
he lost to Bernard G. Tagarao. About two years later, a recall election was held where
Talaga, Jr. ran against Tagarao. He (Talaga, Jr.) won and served the remainder of
Tagarao's term.
In view of the upcoming May 2001 mayoralty election, Talaga, Jr. filed his certificate of
candidacy. On March 2, 2001, therein petitioner Adormeo sought the cancellation of Talaga,
Jr.'s certificate of candidacy and/or his disqualification on the ground that he had been
thrice elected and had served three consecutive terms as city mayor. Talaga, Jr., however,
was declared qualified for the position of city mayor. Adormeo thus sought recourse before
this Court.
Citing the Borja and Lonzanida rulings, we ruled that Talaga, Jr. was not disqualified as the
two conditions for disqualification, namely (1) the elective official concerned was elected for
three consecutive terms in the same post and (2) he has fully served three consecutive
terms, were not met. We did not consider Talaga, Jr.'s service of the unexpired portion of
Tagarao's term as service of a full term for purposes of the three term limit. We also ruled
that he did not serve for three consecutive terms as there was a break in his service when
he lost to Tagarao in the 1998 elections. We held, viz:
"COMELEC's ruling that private respondent was not elected for three (3) consecutive terms
should be upheld. For nearly two years, he was a private citizen. The continuity of his
mayorship was disrupted by his defeat in the 1998 elections.
Patently untenable is petitioner's contention that COMELEC in allowing respondent Talaga,
Jr. to run in the May 1998 election violates Article X, Section 8 of the 1987 Constitution.
(footnote omitted) To bolster his case, respondent adverts to the comment of Fr. Joaquin
Bernas, a Constitutional Commission member, stating that in interpreting said provision that
'if one is elected representative to serve the unexpired term of another, that unexpired
(term), no matter how short, will be considered one term for the purpose of computing the
number of successive terms allowed.'
As pointed out by the COMELEC en banc, Fr. Bernas' comment is pertinent only to
members of the House of Representatives. Unlike local government officials, there is no
recall election provided for members of Congress. (Rollo, pp. 83-84)" 12 (emphasis supplied)
The deliberations of the ConCom and the ruling case law of Borja, Lonzanida and Adormeo
show that there are two principal reasons for the three term limit for elective local officials:
(1) to prevent political dynasties perpetuated by the undue advantage of the incumbent and
(2) to broaden the choice of the people by allowing candidates other than the incumbent to
serve the people. Likewise evident in the deliberations is the effort to balance between two
interests, namely, the prevention of political dynasties and broadening the choice of the
people on the one hand, and respecting the freedom of choice and voice of the people, on
the other; thus, the calibration between perpetual disqualification after three consecutive
terms as proposed by Commissioner Garcia, and setting a limit on immediate reelection and
providing for a hibernation period.
In all three cases - Borja, Lonzanida and Adormeo - we ruled that the "term" referred to in
the three term limit is service of a full term of three years for elective local officials. This
ruling furthers the intent of the ConCom to prevent political dynasties as it is the service of
consecutive full terms that makes service continuous and which opens the gates to political
dynasties limiting the people's choice of leaders. In the words Of Commissioner Ople, ". . .
we want to prevent future situations where, as a result of continuous service and frequent
reelections, officials from the President down to the municipal mayor tend to develop a
proprietary interest in their positions and to accumulate those powers and perquisites that
permit them to stay on indefinitely or to transfer these posts to members of their families in a
subsequent election. I think that is taken care of because we put a gap on the continuity or
unbroken service of all of these officials. (emphasis supplied)" Thus, ConCom set the limit
on consecutive full terms to no more than three. Otherwise stated, it is a fourth consecutive
full term that is prohibited.
Josef Elvin Campos
In the cases at bar, however, private respondent Hagedorn will not serve a prohibited fourth
consecutive full term as he will be serving only the unexpired portion of the 2001-2004
mayoralty term. Similar to Talaga, Jr. in the Adormeo case, Hagedorn's service as mayor
will not be continuous from the third to a fourth consecutive full term as it was broken when
Socrates was elected in the 2001 regular mayoralty election and served for one year. In the
same vein that Talaga, Jr. was elected into office by recall election and his service of the
unexpired portion of the incumbent's term was not considered a consecutive full term for
purposes of applying the three term limit, Hagedorn's service of the unexpired portion of
Socrates' term should not also be counted as a prohibited fourth consecutive full term. It
should not make a difference whether the recall election came after the second consecutive
full term as in the Adormeo case or after the third consecutive term as in the cases at bar
because the intent to create a hiatus in service is satisfied in both instances.
Even a textual analysis of Art. X, Sec. 8 will yield the interpretation that what is prohibited is
the service of a fourth consecutive full term. Petitioners are correct in foisting the view that
"term" is a fixed and definite period of time prescribed by law or the Constitution during
which the public officer may claim to hold the office as a right. It is a fixed and definite
period of time to hold office, perform its functions, and enjoy its privileges and emoluments
until the expiration of the period. 13 In ascertaining what "term" means for elective local
officials, the Constitution itself provides in Art. X, Sec. 8 that it means a fixed, definite, and
full period of three years, viz: "Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be three years ..." Although one
or more persons may discharge the duties of the office during this fixed three-year period,
the term is not divided into smaller terms by the number of incumbents who may fill the
office. It is one and indivisible, and term follows term in successive cycles of three years
each. If the incumbent or the one elected to the office fills a higher vacant office, refuses to
assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is
otherwise permanently incapacitated to discharge the functions of his office, thereby
creating a permanent vacancy,14 the term would remain unbroken until the recurring election
for the office.15
The provisions on voluntary renunciation under Art. X, Sec. 8 and other articles of the
Constitution bolster the interpretation that for purposes of applying the three term limit,
service of a full term of three years is contemplated, viz:
"Art. X, Sec. 8. The term of office of elective local officials, except barangay officials, which
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 the service for the full term for
which he was elected."
"Art. VI, Sec. 4. . . . No Senator shall serve for more than two consecutive terms. Voluntary
renunciation of the office for any length of time shall 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. . . . No Member of the House of Representatives shall serve for more than three
was elected.
xxx xxx xxx
Art. VII, Sec. 4. . . . No Vice-President shall serve more than two successive terms.
Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of the service for the full term for which he was elected."
(emphasis supplied)
Similarly, the Local Government Code of 1991 provides in Sec. 43(b), viz:
"Sec. 43(b) . . . No local elective official shall serve for more than three (3) consecutive
terms in the same position. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected." (emphasis supplied)
Likewise, because "term" is understood to be a fixed, definite, and full period, the
Constitution, in Art. Vi, Sec. 9, uses the qualifier "unexpired term" to refer to only a portion
of a term, viz:
"Art. VI, Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a
special election may be called to fill such vacancy in the manner prescribed by law, but the
Senator or Member of the House of Representatives thus elected shall serve only for the
unexpired term." (emphasis supplied)
Josef Elvin Campos
Similarly, Sec. 44 of the Local Government Code of 1991 uses the phrase "unexpired term"
to mean the remainder of the term, viz:
"Sec. 44(d). The successors as defined herein shall serve only the unexpired terms of his
predecessors. . ." (emphasis supplied)
Thus, when Art. X, Sec. 8 of the Constitution states that "...no such (local elective) official
shall serve for more than three consecutive terms," it consistently means that it allows
service of a maximum of three consecutive full terms and prohibits service of a minimum
fourth consecutive full term.
In putting a cap on the number of consecutive full terms an elective local official can serve,
the ConCom sought to curb the undue advantage of the incumbent over other aspirants,
which advantage makes it easier to found a political dynasty. At the time of the September
24, 2002 recall election, however, Hagedorn was not the incumbent favored with this feared
"undue advantage of the incumbent." On the contrary, he ran against the incumbent Mayor
Socrates who alone could be the subject of recall election and who, by law, was
automatically a candidate in the election. 16 Hagedorn did not run in the 2001 regular
mayoralty election of Puerto Princesa City which Socrates won, precisely because he was
aware of the three term limit.
It is my respectful submission that the Constitution and the Local Government Code of 1991
proscribe a local official who has been thrice consecutively elected in regular elections and
has served three full terms in the same position, from running in the regular election
succeeding his third consecutive term. It is this situation that is prohibited because it makes
possible service of more than three consecutive and continuous full terms, i.e., service of a
fourth consecutive full term. We cannot overstress that it is this continuousness that the
ConCom feared would open the gates to the two evils sought to be avoided: the
incumbent's use of his undue advantage to put up a political dynasty and limiting the
people's choice of leaders. It is in this context of regular elections that our obiter dictum in
the Lonzanida case, which petitioners harp on, should be understood. In that case, we
opined that "[a]s finally voted upon, it was agreed that an elective local government official
should be barred from running for the same post after three consecutive terms. After a
hiatus of at least one term, he may again run for the same office." 17 Indeed, insofar as
regular local elections are concerned, which were the elections involved in that case, there
should be a hiatus of at least one full term of three years.
On the other hand, in the case of a local official who assumes office through a recall
election - whether after his first, second, or third consecutive term- there is a break in his
service caused by the election of the incumbent who was recalled. Even in the case of a
local official who initially assumes office via recall election, then wins the two succeeding
regular elections and serves two full terms in the same post, he is not prohibited from
seeking another reelection and serving another full term. This is so because his service of
the remainder of the incumbent's term via recall election is not, in reality and in law, a full
term continuing on to his three succeeding full terms. Local officials who assume office via
recall election serve only the unexpired portion of the incumbent's term and this service is
not counted as a full term, despite the Constitutional mandate that the term of office of
elective local officials is three years. Such is the design because Art. XVIII, Secs. 2 and 5 of
the Constitution also prescribe synchronization of regular national and local elections
beginning on the second Monday of May 1992, 18 which is accomplished if the local official
who assumes office through recall election serves only the incumbent's unexpired term.
It is only in the case of Representatives (and Senators) that "if one is elected
Representative to serve the unexpired term of another, that unexpired term will be
considered one term for purposes of computing the number of successive terms
allowed."19 The election herein contemplated is a special election thus this Constitutional
intent does not apply to a recall election which involves only elective local officials. The
Record bear this out, viz:
"MR. SUAREZ. . . May we ask a clarificatory question regarding the interpretation of
the provisions in Sections 3 and 6 in relation to Section 9 regarding the
disqualification on the part of the Senator to run for two consecutive terms, and in the
case of the Members of the House of Representatives, for three consecutive terms.
For example, a special election is called for a Senator, and the Senator newly
elected would have to serve the unexpired portion of the term. Would that mean that
serving the unexpired portion of the term is already considered one term? So, half a
term, which is actually the correct statement, plus one term would disqualify the
Senator concerned from running? Is that the meaning of this provision on
disqualification, Madam President?
Josef Elvin Campos
MR. DAVIDE. Yes, because we speak of "term" and if there is a special election, he
will serve only for the unexpired portion of that particular term plus one more term for
the Senator and two terms for the Members of the Lower House." 20
As we ruled in the Adormeo case, service of an unexpired term is considered service of a
full term only with respect to Representatives (and Senators) because unlike local
government officials, Representatives cannot be recalled. It is continuous prolonged stay in
office that breeds political dynasties. Understandably therefore, insofar as Representatives
who cannot be recalled are concerned, service of an unexpired term is strictly counted as
service of a full term because the purpose of the ConCom was to limit the right to run and
be elected in Congress.21
In allowing Hagedorn to participate in the September 24 recall election, we are not
unmindful of the intent of the ConCom to broaden the people's choice of leaders. The three
term limit was adopted to allow the electorate to choose from other candidates in the regular
election succeeding the incumbent's third consecutive term. This is clear in the
Commissioners' alternatives for voting on the term limit for Representatives and the
outcome of their voting where 17 voted for "no further election after a total of three terms"
and 26 voted for "no immediate reelection after three successive terms." A reelection is
immediate if a local official wins in the election succeeding the third consecutive term. 22 This
is not the case with Hagedorn who did not run in the 2001 regular mayoralty election and
left that political arena to other contenders, thereby upholding the intent of the ConCom to
broaden the choice of the electorate.
The intent of the ConCom to create a hiatus in the service of elective local officials after
three consecutive full terms cannot be undermined through abuse of the power of recall.
The Local Government Code of 1991 provides limitations on recall in Section 74, viz:
"Section 74. Limitations on Recall. (a) any elective local official may be the subject of a
recall election only once during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding a regular local election."
(emphasis supplied)
Thus, an elective local official cannot perpetually hold on to his office through the
mechanism of recall as at the very least, there will be a hiatus of one year after an unbroken
service of three terms. He could not simply create, in the words of Commissioner Monsod,
"structures that will perpetuate him (them)" in power with the assurance that they will not be
exposed because after serving three consecutive full terms, he will certainly be replaced.
Within the one-year period under Sec. 74, his successor could discover and begin to
dismantle these manipulative structures. This one year period also provides a reasonable
basis for the electorate to judge the performance of the incumbent successor, thus obviating
fear of political maneuvering through initiation of recall proceedings by a Preparatory Recall
Assembly dominated by minions of the previous local official. 23 In Claudio v. COMELEC, et
al., 24 we held, viz:
"In the Bower case (in re Bower 41 I11. 777, 242 N.E. 2d 252 [1968]) cited by this Court in
Angobung v. COMELEC (269 SCRA 245, 256 [1997]), it was held that 'The only logical
reason which we can ascribe for requiring the electors to wait one year before petitioning for
recall election is to prevent premature action on their part in voting to remove a newly
elected official before having had sufficient time to evaluate the soundness of his policies
and decisions.'"25
If, after one year in office, the incumbent proves himself to be worthy of his position, then
his constituents will confirm this should a recall election be called, as in the case of Mayor
Reynaldo Malonzo of Caloocan City. If, on the other hand, the incumbent turns out to be an
ineffective leader, there is no reason why the electorate should not be allowed to make a
Cincinnatus of their past leader.
The imagined fear of abuse of the power of recall does not suffice to disqualify private
respondent Hagedorn and should not prevail over the resounding voice of the people of
Puerto Princesa City. They have spoken and there is no mistaking that Hagedorn is their
overwhelming choice. We cannot subscribe to the petitioners' position and allow an overly
literal reading of the law to mute the electorate's cry and curtail their freedom to choose their
leaders. This freedom was as much a concern of the ConCom as was the prevention of
political dynasties and broadening the choice of the people. This Court has not just once
admonished against a too literal reading of the law as this is apt to constrict rather than fulfill
its purpose and defeat the intention of the authors. 26
In sum, private respondent Hagedorn is not disqualified from running in the September 24,
2002 recall election as the disqualification under Art. X, Sec. 8 of the Constitution applies to
the regular mayoralty election succeeding the third consecutive term served. Nor is he
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precluded from serving the unexpired portion of the 2001-2004 mayoralty term as this is not
service of a prohibited fourth consecutive full term.
I vote to deny the petition, giving due consideration to the tenet of representative democracy
that the people should be allowed to choose whom they wish to govern them. 27 In the end, ".
. . more than judgments of courts of law, the judgment of the tribunal of the people is final
for 'sovereignty resides in the people and all government authority emanates from them.'" 28
Latasa V. Comelec (G.R. No. 154829, 10 December 2003)

G.R. No. 154829 December 10, 2003
ARSENIO A. LATASA, petitioner,
vs.
COMMISSION ON ELECTIONS, and ROMEO SUNGA, respondents
DECISION
AZCUNA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court which seeks to challenge
the resolution issued by the First Division of the Commission on Elections (COMELEC)
dated April 27, 2001 in SPA Case No. 01-059 entitled, Romeo M. Sunga, petitioner, versus
Arsenio A. Latasa, respondent, and the Resolution of the COMELEC en banc denying
herein petitioner’s Motion for Reconsideration. The assailed Resolution denied due course
to the certificate of candidacy of petitioner Arsenio A. Latasa, declaring him disqualified to
run for mayor of Digos City, Davao del Sur Province in the May 14, 2001 elections, ordering
that all votes cast in his favor shall not be counted, and if he has been proclaimed winner,
declaring said proclamation null and void.
The facts are fairly simple.
Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur
in the elections of 1992, 1995, and 1998. During petitioner’s third term, the Municipality of
Digos was declared a component city, to be known as the City of Digos. A plebiscite
conducted on September 8, 2000 ratified Republic Act No. 8798 entitled, "An Act
Converting the Municipality of Digos, Davao del Sur Province into a Component City to be
known as the City of Digos" or the Charter of the City of Digos. This event also marked the
end of petitioner’s tenure as mayor of the Municipality of Digos. However, under Section 53,
Article IX of the Charter, petitioner was mandated to serve in a hold-over capacity as mayor
of the new City of Digos. Hence, he took his oath as the city mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May
14, 2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that
he had already served for three consecutive terms as mayor of the Municipality of Digos
and is now running for the first time for the position of city mayor.
On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for city mayor in
the said elections, filed before the COMELEC a Petition to Deny Due Course, Cancel
Certificate of Candidacy and/ or For Disqualification 1 against petitioner Latasa. Respondent
Sunga alleged therein that petitioner falsely represented in his certificate of candidacy that
he is eligible to run as mayor of Digos City since petitioner had already been elected and
served for three consecutive terms as mayor from 1992 to 2001.
On March 5, 2001, petitioner Latasa filed his Answer, 2 arguing that he did not make any
false representation in his certificate of candidacy since he fully disclosed therein that he
had served as mayor of the Municipality of Digos for three consecutive terms. Moreover, he
argued that this fact does not bar him from filing a certificate of candidacy for the May 14,
2001 elections since this will be the first time that he will be running for the post of city
mayor.
Both parties submitted their position papers on March 19, 2001. 3
On April 27, 2001, respondent COMELEC’s First Division issued a Resolution, the
dispositive portion of which reads, as follows:
Wherefore, premises considered, the respondent’s certificate of candidacy should be
cancelled for being a violation of the three (3)-term rule proscribed by the 1987 Constitution
and the Local Government Code of 1991.4
Petitioner filed his Motion for Reconsideration dated May 4, 2001, 5 which remained unacted
upon until the day of the elections, May 14, 2001. On May 16, 2001, private respondent
Sunga filed an Ex Parte Motion for Issuance of Temporary Restraining Order Enjoining the
City Board of Canvassers From Canvassing or Tabulating Respondent’s Votes, and From
Proclaiming Him as the Duly Elected Mayor if He Wins the Elections. 6 Despite this, however,
petitioner Latasa was still proclaimed winner on May 17, 2001, having garnered the most
number of votes. Consequently, private respondent Sunga filed, on May 27, 2001, a
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Supplemental Motion7 which essentially sought the annulment of petitioner’s proclamation
and the suspension of its effects.
On July 1, 2001, petitioner was sworn into and assumed his office as the newly elected
mayor of Digos City. It was only on August 27, 2002 that the COMELEC en banc issued a
Resolution denying petitioner’s Motion for Reconsideration.
It cannot be denied that the Court has previously held in Mamba-Perez v. COMELEC8 that
after an elective official has been proclaimed as winner of the elections, the COMELEC has
no jurisdiction to pass upon his qualifications. An opposing party’s remedies after
proclamation would be to file a petition for quo warranto within ten days after the
proclamation.
On the other hand, certain peculiarities in the present case reveal the fact that its very heart
is something which this Court considers of paramount interest. This Court notes from the
very beginning that petitioner himself was already entertaining some doubt as to whether or
not he is indeed eligible to run for city mayor in the May 14, 2001 elections. In his certificate
of candidacy, after the phrase "I am eligible", petitioner inserted a footnote and indicated:
*
Having served three (3) term[s] as municipal mayor and now running for the first time as
city mayor.9
Time and again, this Court has held that rules of procedure are only tools designed to
facilitate the attainment of justice, such that when rigid application of the rules tend to
frustrate rather than promote substantial justice, this Court is empowered to suspend their
operation. We will not hesitate to set aside technicalities in favor of what is fair and just. 10
The spirit embodied in a Constitutional provision must not be attenuated by a rigid
application of procedural rules.
The present case raises a novel issue with respect to an explicit Constitutional mandate:
whether or not petitioner Latasa is eligible to run as candidate for the position of mayor of
the newly-created City of Digos immediately after he served for three consecutive terms as
mayor of the Municipality of Digos.
As a rule, in a representative democracy, the people should be allowed freely to choose
those who will govern them. Article X, Section 8 of the Constitution is an exception to this
rule, in that it limits the range of choice of the people.
was elected.
An examination of the historical background of the subject Constitutional provision reveals
monopolization of political power. In fact, they rejected a proposal set forth by
Commissioner Edmundo Garcia that after serving three consecutive terms or nine years,
there should be no further re-election for local and legislative officials. 11 The members,
instead, adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the succeeding election
following the expiration of the third consecutive term:
MR. MONSOD: Madam President, I was reflecting on this issue earlier and I asked to speak
because in this draft Constitution, we are recognizing people’s power. We have said that
now there is a new awareness, a new kind of voter, a new kind of Filipino. And yet at the
same time, we are prescreening candidates among whom they will choose. We are saying
that this 48-member Constitutional Commission has decreed that those who have served
for a period of nine years are barred from running for the same position.
The argument is that there may be other positions. But there are some people who are very
skilled and good at legislation, and yet are not of a national stature to be Senators. They
may be perfectly honest, perfectly competent and with integrity. They get voted into office at
the age of 25, which is the age we provide for Congressmen. And at 34 years old we put
them into pasture.
Second, we say that we want to broaden the choices of the people. We are talking here
only of congressional or senatorial seats. We want to broaden the people’s choice but we
are making prejudgment today because we exclude a certain number of people. We are, in
effect, putting an additional qualification for office – that the officials must have not have
served a total of more than a number of years in their lifetime.
Third, we are saying that by putting people to pasture, we are creating a reserve of
statesmen, but the future participation of these statesmen is limited. Their skills may be only
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in some areas, but we are saying that they are going to be barred from running for the same
position.
Madam President, the ability and capacity of a statesman depend as well on the day-to-day
honing of his skills and competence, in intellectual combat, in concern and contact with the
people, and here we are saying that he is going to be barred from the same kind of public
service.
I do not think it is in our place today to make such a very important and momentous
decision with respect to many of our countrymen in the future who may have a lot more
years ahead of them in the service of their country.
If we agree that we will make sure that these people do not set up structures that will
perpetuate them, then let us give them this rest period of three years or whatever it is.
Maybe during that time, we would even agree that their fathers or mothers or relatives of the
second degree should not run. But let us not bar them for life after serving the public for
number of years.12
The framers of the Constitution, by including this exception, wanted to establish some
safeguards against the excessive accumulation of power as a result of consecutive terms.
As Commissioner Blas Ople stated during the deliberations:
x x x I think we want to prevent future situations where, as a result of continuous service
and frequent re-elections, officials from the President down to the municipal mayor tend to
develop a proprietary interest in their positions and to accumulate these powers and
perquisites that permit them to stay on indefinitely or to transfer these posts to members of
their families in a subsequent election. x x x 13
An elective local official, therefore, is not barred from running again in for same local
government post, unless two conditions concur: 1.) that the official concerned has been
elected for three consecutive terms to the same local government post, and 2.) that he has
fully served three consecutive terms.14
In the present case, petitioner states that a city and a municipality have separate and
distinct personalities. Thus they cannot be treated as a single entity and must be accorded
different treatment consistent with specific provisions of the Local Government Code. He
does not deny the fact that he has already served for three consecutive terms as municipal
mayor. However, he asserts that when Digos was converted from a municipality to a city, it
attained a different juridical personality. Therefore, when he filed his certificate of candidacy
for city mayor, he cannot be construed as vying for the same local government post.
For a municipality to be converted into a city, the Local Government Code provides:
SECTION 450. Requisites for Creation. - (a) A municipality or a cluster of barangays may
be converted into a component city it has an average annual income, as certified by the
Department of Finance, of at least Twenty million pesos (20,000,000.00) for the last two (2)
consecutive years based on 1991 constant prices, and if it has either of the following
requisites:
certified by the Land Management Bureau; or,
inhabitants, as certified by the National Statistics Office.
metes and bounds. The requirement on land are shall not apply where the city
proposed to be created is composed of one (1) or more island. The territory need not
be contiguous if it comprises two (2) or more islands.
fund, exclusive of special funds, transfers, and non-recurring income. 15
Substantial differences do exist between a municipality and a city. For one, there is a
material change in the political and economic rights of the local government unit when it is
converted from a municipality to a city and undoubtedly, these changes affect the people as
well.16 It is precisely for this reason why Section 10, Article X of the Constitution mandates
that no province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, without the approval by a majority of the
votes cast in a plebiscite in the political units directly affected.
As may be gleaned from the Local Government Code, the creation or conversion of a local
government unit is done mainly to help assure its economic viability. Such creation or
conversion is based on verified indicators:
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Section 7. Creation and Conversion. --- As a general rule, the creation of a local
government unit or its conversion from one level to another shall be based on verifiable
indicators or viability and projected capacity to provide services, to wit:
(a) Income. --- It must be sufficient, based on acceptable standards, to provide for all
essential government facilities and services and special functions commensurate
with the size of its population, as expected of the local government unit concerned;
(b) Population. --- It shall be determined as the total number of inhabitants within the
territorial jurisdiction of the local government unit concerned; and
(c) Land Area. --- It must be contiguous, unless it comprises two (2) or more islands
or is separated by a local government unit independent of the others; properly
identified by metes and bounds with technical descriptions; and sufficient to provide
for such basic services and facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department of Finance
(DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of
the Department of Environment and Natural Resources (DENR). 17
On the other hand, Section 2 of the Charter of the City of Digos provides:
Section 2. The City of Digos --- The Municipality of Digos shall be converted into a
component city to be known as the City of Digos, hereinafter referred to as the City, which
shall comprise the present territory of the Municipality of Digos, Davao del Sur Province.
The territorial jurisdiction of the City shall be within the present metes and bounds of the
Municipality of Digos. x x x
Moreover, Section 53 of the said Charter further states:
Section 53. Officials of the City of Digos. --- The present elective officials of the Municipality
of Digos shall continue to exercise their powers and functions until such a time that a new
election is held and the duly-elected officials shall have already qualified and assumed their
offices. x x x.
As seen in the aforementioned provisions, this Court notes that the delineation of the metes
and bounds of the City of Digos did not change even by an inch the land area previously
covered by the Municipality of Digos. This Court also notes that the elective officials of the
Municipality of Digos continued to exercise their powers and functions until elections were
held for the new city officials.
True, the new city acquired a new corporate existence separate and distinct from that of the
municipality. This does not mean, however, that for the purpose of applying the subject
Constitutional provision, the office of the municipal mayor would now be construed as a
different local government post as that of the office of the city mayor. As stated earlier, the
territorial jurisdiction of the City of Digos is the same as that of the municipality.
Consequently, the inhabitants of the municipality are the same as those in the city. These
inhabitants are the same group of voters who elected petitioner Latasa to be their municipal
mayor for three consecutive terms. These are also the same inhabitants over whom he held
power and authority as their chief executive for nine years.
This Court must distinguish the present case from previous cases ruled upon this Court
involving the same Constitutional provision.
In Borja, Jr. v. COMELEC,18 the issue therein was whether a vice-mayor who became the
mayor by operation of law and who served the remainder of the mayor’s term should be
considered to have served a term in that office for the purpose of the three-term limit under
the Constitution. Private respondent in that case was first elected as vice-mayor, but upon
the death of the incumbent mayor, he occupied the latter’s post for the unexpired term. He
was, thereafter, elected for two more terms. This Court therein held that when private
respondent occupied the post of the mayor upon the incumbent’s death and served for the
remainder of the term, he cannot be construed as having served a full term as contemplated
under the subject constitutional provision. The term served must be one "for which [the
official concerned] was elected."
It must also be noted that in Borja, the private respondent therein, before he assumed the
position of mayor, first served as the vice-mayor of his local government unit. The nature of
the responsibilities and duties of the vice-mayor is wholly different from that of the mayor.
The vice-mayor does not hold office as chief executive over his local government unit. In the
present case, petitioner, upon ratification of the law converting the municipality to a city,
continued to hold office as chief executive of the same territorial jurisdiction. There were
changes in the political and economic rights of Digos as local government unit, but no
substantial change occurred as to petitioner’s authority as chief executive over the
inhabitants of Digos.
In Lonzanida v. COMELEC,19 petitioner was elected and served two consecutive terms as
mayor from 1988 to 1995. He then ran again for the same position in the May 1995
Josef Elvin Campos
elections, won and discharged his duties as mayor. However, his opponent contested his
proclamation and filed an election protest before the Regional Trial Court, which ruled that
there was a failure of elections and declared the position of mayor vacant. The COMELEC
affirmed this ruling and petitioner acceded to the order to vacate the post. During the May
1998 elections, petitioner therein again filed his certificate of candidacy for mayor. A petition
to disqualify him was filed on the ground that he had already served three consecutive
terms. This Court ruled, however, that petitioner therein cannot be considered as having
been duly elected to the post in the May 1995 elections, and that said petitioner did not fully
serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office.
In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the
May 1998 elections. Can he then be construed as having involuntarily relinquished his office
by reason of the conversion of Digos from municipality to city? This Court believes that he
did involuntarily relinquish his office as municipal mayor since the said office has been
deemed abolished due to the conversion. However, the very instant he vacated his office as
municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where
petitioner therein, for even just a short period of time, stepped down from office, petitioner
Latasa never ceased from acting as chief executive of the local government unit. He never
ceased from discharging his duties and responsibilities as chief executive of Digos.
In Adormeo v. COMELEC,20 this Court was confronted with the issue of whether or not an
assumption to office through a recall election should be considered as one term in applying
the three-term limit rule. Private respondent, in that case, was elected and served for two
consecutive terms as mayor. He then ran for his third term in the May 1998 elections, but
lost to his opponent. In June 1998, his opponent faced recall proceedings and in the recall
elections of May 2000, private respondent won and served for the unexpired term. For the
May 2001 elections, private respondent filed his certificate of candidacy for the office of
mayor. This was questioned on the ground that he had already served as mayor for three
consecutive terms. This Court held therein that private respondent cannot be construed as
having been elected and served for three consecutive terms. His loss in the May 1998
elections was considered by this Court as an interruption in the continuity of his service as
mayor. For nearly two years, private respondent therein lived as a private citizen. The
same, however, cannot be said of petitioner Latasa in the present case.
Finally, in Socrates v. COMELEC,21 the principal issue was whether or not private
respondent Edward M. Hagedorn was qualified to run during the recall elections. Therein
respondent Hagedorn had already served for three consecutive terms as mayor from 1992
until 2001 and did not run in the immediately following regular elections. On July 2, 2002,
the barangay officials of Puerto Princesa convened themselves into a Preparatory Recall
Assembly to initiate the recall of the incumbent mayor, Victorino Dennis M. Socrates. On
August 23, 2002, respondent Hagedorn filed his certificate of candidacy for mayor in the
recall election. A petition for his disqualification was filed on the ground that he cannot run
for the said post during the recall elections for he was disqualified from running for a fourth
consecutive term. This Court, however, ruled in favor of respondent Hagedorn, holding that
the principle behind the three-term limit rule is to prevent consecutiveness of the service of
terms, and that there was in his case a break in such consecutiveness after the end of his
third term and before the recall election.
It is evident that in the abovementioned cases, there exists a rest period or a break in the
service of the local elective official. In Lonzanida, petitioner therein was a private citizen a
few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the
private respondents therein lived as private citizens for two years and fifteen months
respectively. Indeed, the law contemplates a rest period during which the local elective
official steps down from office and ceases to exercise power or authority over the
inhabitants of the territorial jurisdiction of a particular local government unit.1âwphi1
position of city mayor after having served for three consecutive terms as a municipal mayor
Should he be allowed another three consecutive terms as mayor of the City of Digos,
scenario sought to be avoided by the Constitution, if not abhorred by it.
Finally, respondent Sunga claims that applying the principle in Labo v. COMELEC,22 he
should be deemed the mayoralty candidate with the highest number of votes. On the
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contrary, this Court held in Labo that the disqualification of a winning candidate does not
necessarily entitle the candidate with the highest number of votes to proclamation as the
winner of the elections. As an obiter, the Court merely mentioned that the rule would have
been different if the electorate, fully aware in fact and in law of a candidate’s disqualification
so as to bring such awareness within the realm of notoriety, would nonetheless cast their
votes in favor of the ineligible candidate. In such case, the electorate may be said to have
waived the validity and efficacy of their votes by notoriously misapplying their franchise or
throwing away their votes, in which case, the eligible candidate obtaining the next higher
number of votes may be deemed elected. The same, however, cannot be said of the
present case.
This Court has consistently ruled that the fact that a plurality or a majority of the votes are
cast for an ineligible candidate at a popular election, or that a candidate is later declared to
be disqualified to hold office, does not entitle the candidate who garnered the second
highest number of votes to be declared elected. The same merely results in making the
winning candidate’s election a nullity.23 In the present case, moreover, 13,650 votes were
cast for private respondent Sunga as against the 25,335 votes cast for petitioner
Latasa.24 The second placer is obviously not the choice of the people in that particular
election. In any event, a permanent vacancy in the contested office is thereby created which
should be filled by succession.25
WHEREFORE, the petition is DISMISSED. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ.,
concur.
Ong v. Alegre (G.R. No. 163295, 23 January 2006)

G.R. No. 163295 January 23, 2006
FRANCIS G. ONG, Petitioner,
vs.
JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents.
x---------------------x
G.R. No. 163354 January 23, 2006
ROMMEL G. ONG, Petitioner,
vs.
JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents.
DECISION
GARCIA, J.:
Before the Court are these two separate petitions under Rule 65 of the Rules of Court to
nullify and set aside certain issuances of the Commission on Elections (COMELEC) en
banc.
The first, docketed as G.R. No. 163295, is a petition for certiorari with petitioner Francis G.
Ong impugning the COMELEC en banc resolution1 dated May 7, 2004 in SPA Case No. 04-
048, granting private respondent Joseph Stanley Alegre's motion for reconsideration of the
resolution dated March 31, 20042 of the COMELEC’s First Division.
The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application
for injunctive relief, filed by petitioner Rommel Ong, brother of Francis, seeking, among
other things, to stop the COMELEC from enforcing and implementing its aforesaid May 7,
2004 en banc resolution in SPA Case No. 04-048 pending the outcome of the petition in
G.R. No. 163295.
Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these
petitions.
The recourse stemmed from the following essential and undisputed factual backdrop:
Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis)
were candidates who filed certificates of candidacy for mayor of San Vicente, Camarines
Norte in the May 10, 2004 elections. Francis was then the incumbent mayor.
On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to
Disqualify, Deny Due Course and Cancel Certificate of Candidacy 3 of Francis. Docketed as
SPA Case No. 04-048, the petition to disqualify was predicated on the three-consecutive
term rule, Francis having, according to Alegre, ran in the May 1995, May 1998, and May
2001 mayoralty elections and have assumed office as mayor and discharged the duties
thereof for three (3) consecutive full terms corresponding to those elections.
To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other
for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently
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proclaimed by COMELEC winner in that contest. Alegre subsequently filed an election
protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet,
Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998
mayoralty contest,4 albeit the decision came out only on July 4, 2001, when Francis had
fully served the 1998-2001 mayoralty term and was in fact already starting to serve the
2001-2004 term as mayor-elect of the municipality of San Vicente.
Acting on Alegre’s petition to disqualify and to cancel Francis’ certificate of candidacy for the
May 10, 2004 elections, the First Division of the COMELEC rendered on March 31, 2004 a
resolution5 dismissing the said petition of Alegre, rationalizing as follows:
We see the circumstances in the case now before us analogous to those obtaining in the
sample situations addressed by the Highest Court in the Borja case. Herein, one of the
requisites for the application of the three term rule is not present. Francis Ong might have
indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The
mayoral term however, from 1998 to 2001 cannot be considered his because he was not
duly elected thereto. The [RTC] of Daet, Camarines Norte, Branch 41 has voided his
election for the 1998 term when it held, in its decision that Stanley Alegre was the "legally
elected mayor in the 1998 mayoralty election in San Vicente, Camarines Norte." This
disposition had become final after the [COMELEC] dismissed the appeal filed by Ong, the
case having become moot and academic.
xxx xxx xxx
On the basis of the words of the Highest Court pronounced in the Lonzanida case and
applicable in the case at bench, Ong could not be considered as having served as mayor
from 1998 to 2001 because "he was not duly elected to the post; he merely assumed office
as a presumptive winner; which presumption was later overturned … when [the RTC]
decided with finality that [he] lost in the May 1998 elections." (Words in bracket and
emphasis in the original).
Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that
there was a misapplication of the three-term rule, as applied in the cited cases of Borja vs.
Comelec and Lonzanida vs. Comelec, infra.
On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution 6 reversing
the March 31, 2004 resolution of the COMELEC’s First Division and thereby (a) declaring
Francis "as disqualified to run for mayor of San Vicente, Camarines Norte in the …May 10,
2004"; (b) ordering the deletion of Francis’ name from the official list of candidates; and (c)
directing the concerned board of election inspectors not to count the votes cast in his favor.
The following day, May 8, Francis received a fax machine copy of the aforecited May 7,
2004 resolution, sending him posthaste to seek the assistance of his political party, the
Nationalist People’s Coalition, which immediately nominated his older brother, Rommel Ong
(Rommel), as substitute candidate. At about 5:05 p.m. of the very same day - which is past
the deadline for filing a certificate of candidacy, Rommel filed his own certificate of
candidacy for the position of mayor, as substitute candidate for his brother Francis.
The following undisputed events then transpired:
1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to
Deny Due Course to or Cancel Certificate of Rommel Ong.
2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter 7 to
Provincial Election Supervisor (PES) of Camarines Norte Liza Z. Cariño and Acting
Election Officer Emily G. Basilonia in which he appealed that, owing to the
COMELEC’s inaction on Alegre's petition to cancel Rommel’s certificate of
candidacy, the name "Rommel Ong" be included in the official certified list of
candidates for mayor of San Vicente, Camarines Norte. The desired listing was
granted by the PES Carino.
3. On May 10, 2004, Alegre wrote8 to then COMELEC Commissioner Virgilio
Garcillano, Commissioner-in-Charge for Regions IV and V, seeking clarification on
the legality of the action thus taken by the PES Cariño. Responding, Commissioner
Garcillano issued a Memorandum under date May 10, 2004 9 addressed to PES Liza
D. Zabala-Cariño, ordering her to implement the resolution of the COMELEC en
banc in SPA No. 04-048 promulgated on May 7, 2004. 10 Said Memorandum partly
stated:
The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law
Department], which he quote your stand, "that substitution is not proper if the certificate of
the substituted candidacy is denied due course. In the Resolution of the Commission En
banc, the Certificate of candidacy of Francis Ong was denied due course," and elaborated
further that:
Josef Elvin Campos
"x x x there is an existing policy of the Commission not to include the name of a substitute
candidate in the certified list of candidates unless the substitution is approved by the
Commission.
In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel
Ong Gan Ong, should be denied due course; and 2) the election officer be directed to
delete his name from the list of candidates."
The above position of the Commission was in line with the pronouncement of Supreme
Court in Miranda vs. Abaya (311 SCRA 617) which states:
"There can no valid substitution where a candidate is excluded not only by disqualification
but also by denial and cancellation of his certificate of candidacy."
In view thereof, you are hereby directed to faithfully implement the said Resolution of the
Commission En Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the
original; words in bracket added].
4. Owing to the aforementioned Garcillano Memorandum, it would seem that the
Chairman of the Municipal Board of Canvasser of San Vicente issued an order
enjoining all concerned not to canvass the votes cast for Rommel, prompting the
latter to file a protest with that Board. 11
5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the
winning candidate for the mayoralty post in San Vicente, Camarines Norte. 12
On May 12, 2004, Francis filed before the Court a petition for certiorari, presently docketed
as G.R. No. 163295. His brother Rommel’s petition in G.R. No. 163354 followed barely a
week after.
In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No. 163354 were
consolidated.13
Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private respondent
Alegre’s Petition to Deny Due Course to or Cancel Certificate of Candidacy of Rommel Ong,
for being moot and academic.14
The issues for resolution of the Court are:
In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing its en banc resolution dated May 7,
2004 declaring petitioner Francis as disqualified to run for Mayor of San Vicente, Camarines
Norte in the May 10, 2004 elections and consequently ordering the deletion of his name
from the official list of candidates so that any vote cast in his favor shall be considered stray.
In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it
denied due course to Rommel’s certificate of candidacy in the same mayoralty election as
substitute for his brother Francis.
A resolution of the issues thus formulated hinges on the question of whether or not
petitioner Francis’s assumption of office as Mayor of San Vicente, Camarines Norte for the
mayoralty term 1998 to 2001 should be considered as full service for the purpose of the
three-term limit rule.
Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the
other hand, disagrees. He argues that, while he indeed assumed office and discharged the
duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-
elect in the May 1998 election was contested and eventually nullified per the decision of the
RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues,
citing Lonzanida vs. Comelec15, that a proclamation subsequently declared void is no
proclamation at all and one assuming office on the strength of a protested proclamation
does so as a presumptive winner and subject to the final outcome of the election protest.
The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987
was elected.
Section 43 (b) of the Local Government Code restates the same rule as follows:
Sec. 43. Term of Office.
xxx xxx xxx
(b) No local elective official shall serve for more than three consecutive years in the same
position. Voluntary renunciation of the office for any length of time shall not be considered
an interruption in the continuity of service for the full term for which the elective official
concerned was elected.
Josef Elvin Campos
For the three-term limit for elective local government officials to apply, two conditions or
requisites must concur, to wit: (1) that the official concerned has been elected for three (3)
consecutive terms in the same local government post, and (2) that he has fully served three
(3) consecutive terms.16
With the view we take of the case, the disqualifying requisites are present herein, thus
effectively barring petitioner Francis from running for mayor of San Vicente, Camarines
Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong
having been duly elected mayor of that municipality in the May 1995 and again in the May
2001 elections and serving the July 1, 1995- June 30, 1998 and the July 1, 2001-June 30,
2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term,
albeit there can also be no quibbling that Francis ran for mayor of the same municipality in
the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a
proclamation initially declaring him mayor-elect of the municipality of San Vicente. The
question that begs to be addressed, therefore, is whether or not Francis’s assumption of
office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may
be considered as one full term service in the context of the consecutive three-term limit rule.
We hold that such assumption of office constitutes, for Francis, "service for the full term",
and should be counted as a full term served in contemplation of the three-term limit
prescribed by the constitutional and statutory provisions, supra, barring local elective
officials from being elected and serving for more than three consecutive term for the same
position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No.
6850,17 that it was Francis’ opponent (Alegre) who "won" in the 1998 mayoralty race and,
therefore, was the legally elected mayor of San Vicente. However, that disposition, it must
be stressed, was without practical and legal use and value, having been promulgated after
the term of the contested office has expired. Petitioner Francis’ contention that he was only
a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest
did not make him less than a duly elected mayor. His proclamation by the Municipal Board
of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election
contrary view would mean that Alegre would – under the three-term rule - be considered as
election.
Petitioner cites, but, to our mind, cannot seek refuge from the Court’s ruling in, Lonzanida
vs. Comelec,18 citing Borja vs. Comelec19. In Lonzanida, petitioner Lonzanida was elected
and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May
8, 1995 elections. He then ran again for the same position in the May 1995 elections, won
and discharged his duties as Mayor. However, his opponent contested his proclamation and
filed an election protest before the RTC of Zambales, which, in a decision dated January 9,
1997, ruled that there was a failure of elections and declared the position vacant. The
COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the
post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now,
during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition
to disqualify, under the three-term rule, was filed and was eventually granted. There, the
Court held that Lonzanida cannot be considered as having been duly elected to the post in
the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by
reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida
"cannot be deemed to have served the May 1995 to 1998 term because he was ordered to
vacate [and in fact vacated] his post before the expiration of the term."
The difference between the case at bench and Lonzanida is at once apparent. For one,
in Lonzanida, the result of the mayoralty election was declared a nullity for the stated
reason of "failure of election", and, as a consequence thereof, the proclamation of
Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of
mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being
an involuntary severance from office as a result of legal processes. In fine, there was an
effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case. But
more importantly, here, there was actually no interruption or break in the continuity of
Francis’ service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never
Josef Elvin Campos
unseated during the term in question; he never ceased discharging his duties and
responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the
1998-2001 term.
The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en
banc when it disqualified Francis from running in the May 10, 2004 elections for the
mayoralty post of San Vicente and denying due course to his certificate of candidacy by
force of the constitutional and statutory provisions regarding the three-term limit rule for any
local elective official cannot be sustained. What the COMELEC en banc said in its May 7,
2004 assailed Resolution commends itself for concurrence:
As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in
the Borja and Lonzanida cases in the instant petition will be erroneous because the factual
milieu in those cases is different from the one obtaining here. Explicitly, the three-term limit
was not made applicable in the cases of Borja and Lonzanida because there was an
interruption in the continuity of service of the three consecutive terms. Here, Respondent
Ong would have served continuously for three consecutive terms, from 1995 to 2004. His
full term from 1998 to 2001 could not be simply discounted on the basis that he was not
duly elected thereto on account of void proclamation because it would have iniquitous
effects producing outright injustice and inequality as it rewards a legally disqualified and
repudiated loser with a crown of victory. (Word in bracket added; emphasis in the original)
Given the foregoing consideration, the question of whether or not then Commissioner
Virgilio Garcillano overstepped his discretion when he issued the May 10, 2004
Memorandum, ordering the implementation of aforesaid May 7, 2004 COMELEC en
banc resolution even before its finality 20 is now of little moment and need not detain us any
longer.
Just as unmeritorious as Francis’ petition in G.R. No. 163295 is Rommel’s petition in G.R.
No. 163354 in which he (Rommel) challenges the COMELEC's act of not including his
name as a substitute candidate in the official list of candidates for the May 10, 2004
elections. As it were, existing COMELEC policy 21 provides for the non-inclusion of the name
of substitute candidates in the certified list of candidates pending approval of the
substitution.
Not to be overlooked is the Court’s holding in Miranda vs. Abaya,22 that a candidate whose
certificate of candidacy has been cancelled or not given due course cannot be substituted
by another belonging to the same political party as that of the former, thus:
While there is no dispute as to whether or not a nominee of a registered or accredited
political party may substitute for a candidate of the same party who had been disqualified
for any cause, this does not include those cases where the certificate of candidacy of the
person to be substituted had been denied due course and cancelled under Section 78 of the
Code.
Expressio unius est exclusio alterius. While the law enumerated the occasions where a
candidate may be validly substituted, there is no mention of the case where a candidate is
excluded not only by disqualification but also by denial and cancellation of his certificate of
candidacy. Under the foregoing rule, there can be no valid substitution for the latter case,
much in the same way that a nuisance candidate whose certificate of candidacy is denied
due course and/or cancelled may not be substituted. If the intent of the lawmakers were
otherwise, they could have so easily and conveniently included those persons whose
certificates of candidacy have been denied due course and/or cancelled under the
provisions of Section 78 of the Code.
xxx xxx xxx
A person without a valid certificate of candidacy cannot be considered a candidate in much
the same way as any person who has not filed any certificate of candidacy at all can not, by
any stretch of the imagination, be a candidate at all.
xxx xxx xxx
After having considered the importance of a certificate of candidacy, it can be readily
understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998]
we ruled that a person with a cancelled certificate is no candidate at all. Applying this
principle to the case at bar and considering that Section 77 of the Code is clear and
unequivocal that only an official candidate of a registered or accredited party may be
substituted, there demonstrably cannot be any possible substitution of a person whose
certificate of candidacy has been cancelled and denied due course.
In any event, with the hard reality that the May 10, 2004 elections were already passé,
Rommel Ong’s petition in G.R. No. 163354 is already moot and academic.
WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution
dated May 7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED.
Josef Elvin Campos
Costs against petitioners.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
Mendoza v. Comelec (G.R. No. 149736, 17 December 2002)

[G.R. No. 149736. December 17, 2002.]
MELANIO L. MENDOZA and MARIO E. IBARRA, Petitioners, v. COMMISSION ON

ELECTIONS and LEONARDO B. ROMAN, Respondents.
RESOLUTION
For resolution is a petition for certiorari filed by petitioners Melanio L. Mendoza and

Mario E. Ibarra, seeking to set aside the resolution of the Commission on Elections,
dated August 15, 2001, in EPC No. 2001-5 and to declare respondent Leonardo B.
Roman’s election as governor of Bataan on May 14, 2001 as null and void for
allegedly being contrary to Art. X, §8 of the Constitution, which provides
that:chanrob1es virtua1 1aw 1ibrary
The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than
three consecutive terms. 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.
After due deliberation, the Court voted 8 to 7 to DISMISS the petition.
VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. He

contended that as revealed by the records of the Constitutional Commission, the
Constitution envisions a continuous and an uninterrupted service for three full terms
before the proscription applies. Therefore, not being a full term, a recall term should
not be counted or used as a basis for the disqualification whether served prior (as in
this case) or subsequent (as in the Socrates case) to the nine-year, full three-term
limit.
MENDOZA, J., in whose opinion QUISUMBING, J. joined, voted to dismiss the petition

on the ground that, in accordance with the ruling in Borja, Jr. v. COMELEC, 295
SCRA 157 (1998); Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res.); Lonzanida
v. COMELEC, 311 SCRA 602 (1999); and Adormeo v. COMELEC, G.R. No. 147927,
Feb. 4, 2002, a term during which succession to a local elective office takes place or
a recall election is held should not be counted in determining whether an elective
local official has served more than three consecutive terms. He argued that the
Constitution does not prohibit elective local officials from serving for more than three
consecutive terms because, in fact, it excludes from the three-term limit interruptions
in the continuity of service, so long as such interruptions are not due to the voluntary
renunciation of the office by an incumbent. Hence, the period from June 28, 1994 to
June 30, 1995, during which respondent Leonardo B. Roman served as governor of
Bataan by virtue of a recall election held in 1993, should not be counted. Since on
May 14, 2001 respondent had previously served as governor of Bataan for only two
consecutive terms (1995–1998 and 1998–2001), his election on that day was actually
only his third term for the same position.
PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition. He argued

that a recall term should not be considered as one full term, because a contrary
interpretation would in effect cut short the elected official’s service to less than nine
years and shortchange his constituents. The desire to prevent monopoly of political
power should be balanced against the need to uphold the voters’ obvious preference
who, in the present case, is Roman who received 97 percent of the votes cast. He
explained that, in Socrates, he also voted to affirm the clear choice of the electorate,
because in a democracy the people should, as much as legally possible, be governed
Josef Elvin Campos
by leaders freely chosen by them in credible elections. He concluded that, in election
cases, when two conflicting legal positions are of almost equal weight, the scales of
justice should be tilted in favor of the people’s overwhelming choice.
AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that it is clear

from the constitutional provision that the disqualification applies only if the terms are
consecutive and the service is full and continuous. Hence, service for less than a
term, except only in case of voluntary renunciation, should not count to disqualify an
elective local official from running for the same position. This case is different from
Socrates, where the full three consecutive terms had been continuously served so
that disqualification had clearly attached.
On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVIDE, C.J., and

AUSTRIA-MARTINEZ, CORONA, and CALLEJO, SR., JJ., concurred, holds the view
that the recall term served by respondent Roman, comprising the period June 28,
1994 to June 30, 1995, should be considered as one term. Since he thereafter served
for two consecutive terms from 1995 to 1998 and from 1998 to 2001, his election on
May 14, 2001 was actually his fourth term and contravenes Art. X, §8 of the
Constitution. For this reason, she voted to grant the petition and to declare
respondent’s election on May 14, 2001 as null and void.
CARPIO, J., joined by CARPIO-MORALES, J., also dissented and voted to grant the

petition. He held that a recall term constitutes one term and that to totally ignore a
recall term in determining the three-term limit would allow local officials to serve for
more than nine consecutive years contrary to the manifest intent of the framers of
the Constitution. He contended that respondent Roman’s election in 2001 cannot
exempt him from the three-term limit imposed by the Constitution.chanrob1es virtua1
1aw 1ibrary
WHEREFORE, THE PETITION FOR CERTIORARI IS DISMISSED.
THE SEPARATE OPINIONS OF THE JUSTICES ARE HERETO ATTACHED AS PART

OF THIS RESOLUTION.
Separate Opinions
VITUG, J.:
Petitioners would seek the disqualification of respondent Leonardo B. Roman on the ground
of his having transgressed the three-term limit under Section 8, Article X, of the 1987
Constitution and Section 43 of Republic Act No. 7160 (Local Government Code), providing,
respectively, that —
"Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
was elected." 1
"Sec. 43. Term of Office. — (a) The term of office of all local elective officials elected after
the effectivity of this Code shall be three (3) years, starting from noon of June 30, 1992 or
such date as may be provided for by law, except that of elective barangay officials:
Provided, That all local officials first elected during the local elections immediately following
the ratification of the 1987 Constitution shall serve until noon of June 30, 1992.
"(b) No local elective official shall serve for more than three (3) consecutive terms in the
elective official concerned was elected." 2
Respondent Leonardo B. Roman held the post of Governor of Bataan province a number of
times; viz:chanrob1es virtual 1aw library
Josef Elvin Campos
TERMS MANNER OF ASSUMPTION
a) 1986–1988 Appointed OIC Governor of Bataan
by former President Corazon
Aquino and served up to 1988.

b) 1988–1992 Elected Governor and served up to
1992.
c) 1994–1995 Elected Governor during the
RECALL election in 1993, assumed
office on 28 June 1994 and served
up to 1995.
d) 1995–1998 Elected Governor and served up to
1998.
e) 1998–2001 Elected Governor and served up to 2001. 3
On 22 February 2001, private respondent Roman again filed a certificate of candidacy for
the same post in the 14th May 2001 regular elections. On 16 May 2001, Leonardo Roman
was proclaimed by the Provincial Board of Canvassers of Bataan.
The focal issue presented before the Court in the instant petition would revolve on the
question of whether or not private respondent Roman exceeded the three-term limit for
elective local officials, expressed in the Constitution and the Local Government Code, when
he again ran for the position of Governor in the 14th May 2001 elections, having occupied
and served in that position following the 1993 recall elections, as well as the 1995 and 1998
regular elections, immediately prior to the 2001 elections. In fine, should respondent’s
incumbency to the post of Governor following the recall elections be included in determining
the three-consecutive term limit fixed by law?
In order that the three-consecutive term limit can apply, two conditions must concur, i.e., (1)
that the elective local official concerned has been elected for three consecutive terms to the
same local government position, and (2) that he has served three consecutive full terms,
albeit a voluntary renunciation of the office for any length of time shall not be deemed to be
an interruption in the continuity of the service for the full term for which he is elected. The
constitutional provision does not appear to be all that imprecise for and in its application.
Section 8, Article X, of the Constitution is explicit that the "term of office of elective local
officials . . . shall be three years" which phrase is forthwith followed by its mandate that "no
such official shall serve for more than three consecutive terms," and that" (v)oluntary
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 (is) elected." The law evidently
contemplates a continuous full three-year term before the proscription can apply.
The Constitutional Commission, in its deliberations, referred to a full nine (9) years of
service for each elective local government official in the application of the prohibition,
envisioning at the same time a continuous and uninterrupted period of nine years by
providing for only one exception, i.e., when an incumbent voluntarily gives up the office.
Thus, we read from the records —
"MR. MONSOD.
Madam President, I think the vote on continuous service of nine years for the Members of
the House of Representatives or the lifetime limitation of three terms has a very serious
implication. The interpretation of Commissioner Davide in the case of the Members of the
House is that they are allowed three consecutive terms. They can hibernate for one term
and can have another three terms.
Josef Elvin Campos
"The interpretation of Commissioner Garcia is that the limitation of three terms is a lifetime
limitation. This is a very important distinction for the future; and perhaps, this should be
discussed or at least we can think about it a little longer, rather than vote on it immediately.
"MR. ROMULO.
I withdraw the motion, Madam President. We can handle this after lunch.
"THE PRESIDENT.
Can we have the proposals now, so that when we resume, we are ready to vote on these?
"MR. ROMULO.
Madam President, in essence, is it the Davide interpretation or is it the Garcia

interpretation?
"Madam President, if it is the Davide interpretation . . .
"THE PRESIDENT.
May we state that the interpretation of Commissioner Davide or whatever proposal

Commissioner Davide will say now is the proposal of the Committee on the Legislative as
part of its committee report?
"MR. DAVIDE.
Yes.
"MR. ROMULO.
Yes, Madam President.
"MR. DAVIDE.
We want a vote on that particular issue so the Committee can now finalize the substitute
proposal in the draft.
"MR. GUINGONA.
Madam President, as manifested by Commissioner Monsod, this is a very important

question. Maybe we could allow one speaker to explain very briefly each side of the issue.
"THE PRESIDENT.
Can we have those speeches after lunch?
"MR. GUINGONA.
Yes, Madam President.
"THE PRESIDENT.
I would just like to have the proposals now so that during lunch break, at least we can think
about them, although I suppose we will have some indigestion in the process. May we now
have the proposal we are going to speak about or vote on when we resume the session?
"MR. ROMULO.
Yes, the Garcia interpretation. Madam President.
"THE PRESIDENT.
Josef Elvin Campos
We ask Commissioner Garcia to please state his interpretation.
"MR. GARCIA.
I propose that the local officials be reelected twice and that they be prohibited from running
again after a total term of nine years in public service for the same office.
"THE PRESIDENT.
How about the Congressmen?
"MR. GARCIA.
This is both for the Representatives and the local officials.
"THE PRESIDENT.
All right, for both Representatives and the local officials.
"MR. ROMULO.
I think the same question can be raised as to Senators.
"THE PRESIDENT.
Senators have one reelection.
"MR. RODRIGO.
Before we take our lunch break, may I ask Commissioner Garcia a question on his
proposal.
"Let us say, a mayor has served for nine years, can he, after that, run as governor?
"MR. GARCIA.
He can run for other offices if he wishes.
"MR. RODRIGO.
As long as it is another office.
"THE PRESIDENT.
May we have the other proposal.
"MR. ROMULO.
Commissioner Davide would like to be recognized.
"THE PRESIDENT.
Commissioner Davide is recognized.
"MR. DAVIDE.
The other proposal, Madam President, is: These officials who can seek two reelections can
serve for a total term of nine years, after that, they cannot seek another reelection. They
should rest for one term or more, but it will not bar them from running again after the lapse
of the term following the expiration of the nine-year period.
"x x x.
Josef Elvin Campos
"MR. ROMULO.
We are now ready to discuss the two issues, as indicated on the blackboard, and these are
Alternative No. 1 where there is no further election after a total of three terms and
Alternative No. 2 where there is no immediate reelection after three successive terms.
"The proponents are now ready to explain briefly. I ask that Commissioner Garcia be
recognized.
"THE PRESIDENT.
Commissioner Garcia is recognized to speak on Alternative No. 1.
"MR. GARCIA.
I would like to advocate the proposition that no further election for local and legislative
officials be allowed after a total of three terms or nine years. I have four reasons why I
would like to advocate this proposal, which are as follows: (1) to prevent monopoly of
political power; (2) to broaden the choice of the people; (3) so that no one is indispensable
in running the affairs of the country; and (4) to create a reserve of statesmen both in the
national and local levels. May I explain briefly these four reasons.
"x x x.
"Turnovers in public office after nine years will ensure that new ideas and new approaches
will be welcome. Public office will no longer be a preserve of conservatism and tradition. At
the same time, we will create a reserve of statesmen, both in the national and local levels,
since we will not deprive the community of the wealth of experience and advice that could
come from those who have served for nine years in public office.
"x x x.
"MR. REGALADO.
May I just ask Commissioner Garcia for a clarification. Under Alternative No. 1, which says:
‘No further election after a total of three terms,’ the three terms referred to here need not
have been served consecutively?
"MR. GARCIA.
The Commissioner is correct, madam President.
"MR. REGALADO.
In other words, whether there were interruptions, whether the interruption took over a span
of 20 or 25 years, as long as he has been in that office for a total of nine years, he is
banned from running for the same office.
"MR. GARCIA.
The Commissioner is right, madam President.
"MR. REGALADO.
Thank you.
"MR. ROMULO.
I ask that Commissioner Monsod be recognized.
"THE PRESIDENT.
Commissioner Monsod is recognized.

Josef Elvin Campos
"MR. MONSOD.
Madam President, I was reflecting on this issue earlier and I asked to speak because in this
draft Constitution, we are recognizing people’s power. We have said that now there is a new
awareness, a new kind of voter, a new kind of Filipino. And yet at the same time, we are
prescreening candidates among whom they will choose. We are saying that this 48-member
Constitutional Commission has decreed that those who have served for a period of nine
years are barred from running for the same position.
"x x x.
"THE PRESIDENT.
Commissioner de Castro is recognized.
"MR. DE CASTRO.
Thank you, Madam President.
"I think the issue is on Alternative No. 1 which is: ‘no further election after a total of three
terms.’ I will just put into action what we have approved this morning which is Scheme No.
II, providing for a term of three years for the Members of the Lower House of Congress and
a term of three years also for the local officials, from governor down. We also approved this
morning the alternative that the Members of the Lower House shall have only two
reelections, meaning, one basic election plus two reelections will give them three terms in
the House; that the local officials shall have two reelections, meaning, one basic election
plus two reelections or three terms. Let us compare that now to the number of years in
accordance with Scheme No. II. Under Scheme No. II, the Members of the Lower House
and the local officials shall serve for the firm term of not three years but five years so that
we can synchronize elections after that for every three years. So the Representatives have
already a term of five years on the first term, and another of six years. So they will serve for
eleven years before they will be disqualified under that first issue. I understand that the
three terms mentioned there are only for nine years. It is not so if we follow what we
approved this morning.
"In the case of the Senators, we approved that there is one reelection. Under Scheme No.
II, the Senators will have a term of five years for the first election, and one reelection for a
term of six years, which will give them a total term of eleven years.
"Where does Alternative No. 1 stand now? May I ask the proponent where it stands now? Is
it for nine years or for two reelections as we approved this morning? May I ask the
proponent of Alternative No. 1, Madam President.
"MR. GARCIA.
I am sorry but I think there are two different questions here: for the term of office of the
Senators, it is a maximum of 12 years; for the Representatives, it is a maximum of nine
years.
"MR. DE CASTRO.
What happens now to what we approved this morning? We approved Scheme No. II which
provides a term of five years for the Representatives.
"MR. GARCIA.
I am sorry again, but for the first election, the term of office will have to be fixed by the
Commission on Elections simply for adjustment purposes because of the current term of the
President, for synchronization and for transitory purposes. But once it is regularized, it will
be different.
"MR. DE CASTRO.
Josef Elvin Campos
Is it a total of nine years?
"MR. GARCIA.
Yes, it is still a total of nine years.
"MR. DE CASTRO.
Excluding those who were first elected under Scheme No. II?
"MR. GARCIA.
Proper adjustments will have to be made for the first election.
"MR. DE CASTRO.
Who will make the proper adjustments?
"MR. GARCIA.
The Commission on Elections will make the proper adjustments.
"MR. DE CASTRO.
And what proper adjustments can it do?
"MR. GARCIA.
To make sure that the term is not more than nine years, if possible and if not, we can give
them a term of more or less one or two years, depending on how it can be adjusted.
"x x x.
"MR. ABUBAKAR.
So if the people find that their Representative is competent, we must have confidence in
them because they know their Representative has demonstrated his competence by action,
because he lives with them. Why should we defy the wishes of the people of that district?
Let one Gentleman answer me and it be on record that he is against my position. As I said,
the voice of the people is the voice of God. We should not dictate what the people want.
Why should we arrogate unto ourselves the right of that district or that province to choose
its leaders and limit their total number of years of service to only nine years?
"I would not speak for Batangas nor speak for Laguna, because their people have the right
to choose their own Representatives for a term that they think is appropriate. We cannot
speak for Sulu or even for Cotabato because the situation is different. Maybe we will have
more leaders or maybe we will have only one of our faith and our confidence. Why limit his
total number of years of service to nine years?" 4 (Emphasis provided)
A winner who dislodges in a recall election an incumbent elective local official merely serves
the balance of the latter’s term of office; it is not a full three-year term. It also goes without
saying that an incumbent elective local official against whom a recall election is initiated and
who nevertheless wins in a recall election must be viewed as being a continuing term of
office and not as a break in reckoning his three consecutive terms. 5 In Lonzanida v.
Commission on Elections, 6 this Court has held:jgc:chanrobles.com.ph
". . . The clear intent of the framers of the constitution to bar any attempt to circumvent the
three-term limit by a voluntary renunciation of office and at the same time respect the
people’s choice and grant their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three-term limit; conversely, involuntary severance from office for any
length of time short of the full term provided by law amounts to an interruption of continuity
Josef Elvin Campos
of service." 7
If involuntary severance from the service which results in the incumbent’s being unable to
finish his term of office because of his ouster through valid recall proceedings negates "one
term" for purposes of applying the three-term limit, as so intimated in Lonzanida, it stands to
reason that the balance of the term assumed by the newly elected local official in a recall
election should not also be held to be one term in reckoning the three-term limit. In both
situations, neither the elective local official who is unable to finish his term nor the elected
local official who only assumes the balance of the term of the ousted local official following
the recall election could be considered to have served a full three-year term set by the
Constitution.
This view is not inconsistent, but indeed in line, with the conclusion ultimately reached in
Socrates v. Commission on Elections, 8 where the Court has considered Hagedorn,
following his three full terms of nine years, still qualified to run in a recall election conducted
about a year and a half after the most recent regular local elections. A recall election term
then, not being a full three-year term, is not to be counted or used as a basis for
disqualification whether it is held prior or subsequent to the nine-year full three-term limit.
This same issue has been passed and ruled upon by the Commission on Elections no less
than five times. 9 Consistently, it has held that the term of a newcomer in recall elections
cannot be counted as a full term and may not thus be included in counting the three-term
limit prescribed under the law. The Commission on Elections, with its fact-finding facilities,
its familiarity with political realities, and its peculiar expertise in dealing with election
controversies, should be in a good vantage point to resolve issues of this nature.
Concededly, no ready made formulae are always extant to address occasional complex
issues, allowing time and experience to merely evolve and ultimately provide acceptable
solutions. In the administration of election laws, it would be unsound by an excessive zeal to
remove from the Commission on Elections the initiative it takes on such questions which, in
fact, by legal mandate properly belong to it. 10
Nor should it be ignored that the law here involved is a limitation on the right of suffrage not
only on the candidate for office but also, and most importantly, on the electorate.
Respondent Roman has won the election to the post of Governor of Bataan with a
comfortable margin against his closest opponent. Where a candidate appears to be the
clear choice of the people, doubts on the candidate’s eligibility, even only as a practical
matter, must be so resolved as to respect and carry out, not defeat, the paramount will of
the electorate. While the Constitution would attempt to prevent the monopolization of
political power, indeed a wise rule, the precept of preserving the freedom of choice of the
people on who shall rightfully hold the reins of government for them is no less than
fundamental in looking at its overriding intent.chanrob1es virtua1 1aw 1ibrary
WHEREFORE, I vote to DISMISS the instant petition on the foregoing theses.
MENDOZA, J.:
Respondent Leonardo B. Roman was elected governor of Bataan in a recall election held in
1993 and served in that capacity for one year, from June 28, 1994 to June 30, 1995.
Thereafter, he was elected to the same office in the regular elections of May 8, 1995 and
May 11, 1998. Up to that point, he had served a total of seven (7) years. On May 14, 2001,
he ran for reelection unopposed and won by a landslide, receiving 183,730 votes. The
question is whether his last election violates the three-term limit in the Constitution
considering that at that time he had served for only seven (7) consecutive years.
Article X, § 8 of the Constitution provides:chanrob1es virtual 1aw library
was elected.
Josef Elvin Campos
In several cases 1 decided over the past four years, this Court held that the application of
this provision requires the concurrence of two elements: (1) election in regular elections for
three consecutive terms and (2) service for the full terms, each consisting of three years, for
which the local official was elected. Thus, in the first case, Borja, Jr. v. COMELEC, decided
on September 3, 1998, this Court held that a vice mayor, who had succeeded to the office
of mayor of Pateros, Rizal, was qualified to run for the same position in three successive
regular elections without running afoul of the constitutional prohibition in question.
The same ruling was made in Arcos v. COMELEC, decided on October 6, 1998:
Respondent, who as vice mayor of Legaspi City had become mayor by succession on
December 2, 1991 and had been elected to the same position in 1992 and again in 1995,
was qualified to run in 1998. Said the Court:chanrob1es virtual 1aw library
Indeed, on facts similar to those in the case at bar, this Court recently held in Benjamin U.
Borja, Jr. v. COMELEC, supra, that the constitutional provision which provides that "no
(elective) local official shall serve for more than three consecutive terms in the same
position" contemplates instances where an individual has not only fully served three
consecutive terms in the same elective local office but has also been elected to the same
position for the same number of times.
The ruling in Borja, Jr. was applied to a recall election in Lonzanida v. COMELEC, decided
on July 28, 1999, in which it was held that a municipal mayor, who had been elected for
three consecutive terms and whose third election had been declared void, was qualified to
run for the same position in the immediately succeeding election. This was because said
local official had not previously been elected in three successive elections nor had he
served for three consecutive terms.
The principle of Borja, Jr. was again applied in the recent case of Adormeo v. COMELEC,
decided on February 4, 2002. This Court held that a municipal mayor, who had twice been
elected to the same position and had lost in his bid for a third term, was qualified to run in
the immediately succeeding election even if in the third term he had served in the same
position by virtue of a recall election.
It will thus be seen that, in all the cases, this Court did not count the term during which
succession took place or a recall election was held in determining whether an elective local
official had served for more than three consecutive terms. However, on November 12, 2002,
this Court, while citing Borja, Jr. and its progenies — Arcos, Lonzanida and Adormeo — in
effect overruled these precedents in Socrates v. COMELEC 2 by ruling that a city mayor,
who had served for three consecutive terms, was qualified to run in a recall election held in
the following term because of an "interruption" in the service caused by the holding of a
regular election. The Court said:chanrob1es virtual 1aw library
One cannot stitch together Hagedorn’s previous three-terms with his new recall term to
make the recall term a fourth consecutive term because factually it is not. An involuntary
interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity
or consecutive character of Hagedorn’s service as mayor. [pp. 18-19] [A] necessary
consequence of the interruption of continuity of service is the start of a new term following
the interruption. An official elected in recall election serves the unexpired term of the
recalled official. This unexpired term is in itself one term for purposes of counting the three-
term limit. [p. 23] [Were it] otherwise, an elective local official who serves a recall term can
serve for more than nine consecutive years comprising the recall term plus the regular three
full terms. [p. 24] 3
Although I reached the same result as the majority in that case, I dissented because I
thought then — as I still do — that the local official in question was qualified to run in the
recall election not because of any interruption or break in the continuity of his service but
because the term for which he was elected was less than three years. As I pointed out, the
ruling of the majority in that case was contrary to its professed basis because, while it would
not count the term during which the recall election was held in determining the limit of the
preceding terms, consistent with the ruling in Borja, Jr., Lonzamida and Adorneo, the
majority in Socrates did so for the purpose of determining the limit of the next three
consecutive terms which an elective local official would be entitled to serve.
Josef Elvin Campos
Indeed, it is error to think that, because a regular election is held between the end of three
terms and the term during which a recall election is held, there occurs thereby "an
interruption in the continuity of the service for the full term for which [the official concerned]
was elected" within the meaning of Art. X, § 8. But it is "the continuity of the service for the
full term" — not "the continuity of a full term" — that is in question. We are talking here of
"interruption in the continuity of service," which can only refer to service which is being
rendered. For after service for three consecutive terms has been rendered there can be no
more interruption of service. The local official concerned, who has served for three
consecutive terms, can run in a recall election not because of any break in his service but
because the term to which he is elected is less than three years.
If, then, as in Socrates v. COMELEC, an elective local official can be elected in a recall
election even if he has already previously served for three consecutive terms, 4 it should
make no difference in principle that the recall election in which he is elected comes at the
beginning of a series of three terms. The term for which he is elected is likewise less than
three years and, therefore, it should likewise not be counted in determining how many
consecutive terms he has served in all.
To summarize, in applying the three-term limit, the term during which succession takes
place or a recall election is held should not be counted, either with the three consecutive
terms preceding, or with the three consecutive terms succeeding, such term. It should not
be counted not because of any interruption in the continuity of the service but because such
term is for less than three years. Hence, the unexpired portion of a term, whether filled by
succession or by election in a recall, cannot be considered one full term. In the case at bar,
since respondent Roman’s first election in 1993 was in consequence of a recall and not a
regular election and he had not fully served three consecutive terms when he was elected
on May 14, 2001, I submit with respect that his last election is valid.
Indeed, the cases of Borja, Jr. and Arcos are on all fours with the instant case. In these
cases it was held that a vice mayor who had succeeded to the office of mayor can serve for
three more consecutive terms as such if elected after the expiration of the term during which
he had served by succession. There is no reason why the result should be different simply
because in this case respondent became governor by virtue of election in a recall, rather
than by succession, before winning in three consecutive regular elections. Succession and
recall election are alike. They are both modes of succession for the purpose of
automatically filling permanent vacancies in elective local offices to prevent a hiatus in
office. 5 The local official who succeeds to the office or is elected in a recall simply finishes
the term of his predecessor.
This is in contrast to a special election called to fill a vacancy either in the House of
Representatives or in the Senate. There the person elected wins a term even though it is for
less than three years (in the case of Representatives) or six years (in the case of Senators)
because, between the time the vacancy occurs and a special election is held, there is an
appreciable period during which the vacancy exists so that the unexpired portion of the term
is considered one term. There is no automatic succession in such case. It is even possible
that the vacancy will not be filled because no special election has been called.chanrob1es
virtua1 1aw 1ibrary
It may be that Borja, Jr.’s interpretation of the three-term limit can result in giving an elective
local official a longer tenure than the equivalent of three consecutive terms, which is nine
years. But so let it be. The Constitution does not really prohibit service for more than three
terms if continuity of service is interrupted by means other than the voluntary renunciation of
the incumbent. To hold otherwise would result in limiting an elective local official’s term to
less than three years, which is contrary to the Constitution. For as pointed out in Borja, Jr. v.
COMELEC, the three-term limit in Art. X, § 8 of the Constitution actually embodies two
complementary and reinforcing ideas:chanrob1es virtual 1aw library
Commission. The first is the notion of service of term, derived from the concern about the
accumulation of power as a result of a prolonged stay in office. The second is the idea of
election, derived from the concern that the right of the people to choose those whom they
wish to govern them be preserved. [I]ndeed, a fundamental tenet of representative
democracy is that the people should be allowed to choose those whom they please to
Josef Elvin Campos
govern them [U.S. Term Limits, Inc. v. Thornton, 514 US. 729, 131 LEd.2d 881 (1995)]. To
bar the election of a local official because he has already served three terms, although the
first as a result of succession by operation of law rather than election, would therefore be to
violate this principle. 6
FOR THE FOREGOING REASONS, I vote to dismiss the petition in this case and to
declare the election on May 14, 2001 of respondent Leonardo B. Roman, as governor of
Bataan, valid.
PANGANIBAN, J.:
"In applying election laws, it would be far better to err in favor of popular sovereignty than to
be right in complex but little understood legalisms . . . The real essence of justice does not
emanate from quibblings over patchwork legal technicality. It proceeds from the spirit’s gut
consciousness of the dynamic role of law as a brick in the ultimate development of the
social edifice." 1
The instant Petition seeks to unseat Private Respondent Leonardo B. Roman, incumbent
provincial governor of Bataan, by reason of his allegedly having exceeded the three-term
limit for elective local officials established by Section 8 of Article X of the Constitution; 2 as
reiterated in Section 43(b) of RA 7160, the Local Government Code. 3
Summation of the Facts and the Ponencia
For a clearer understanding of the case, let me restate the relevant facts very briefly. Mr.
Roman won in the 1993 recall election for governor of the Province of Bataan, assumed
office on June 28, 1994, and served the remainder of the term which ended June 30, 1995.
Thereafter, he was reelected in 1995, 1998 and 2001. Thus, he is now serving his ninth
consecutive year as governor of Bataan.
It is argued that the Petition should be granted, in the light mainly of Borja v. Comelec and
Capco 4 and Lonzanida v. Comelec and Muli. 5 In these two cases, this Court held that two
conditions or requirements must concur in order that the three-term limit may apply: first, the
official concerned has been elected for three consecutive terms to the same local
government post; and second, such official has fully served three consecutive terms.
It is further contended that these two conditions or requirements have been satisfied in the
instant case. Insofar as the first requirement is concerned, petitioners claim that
Respondent Roman won in the recall election of 1993 and was reelected in 1995 and 1998;
and with respect to the second requirement, he has already served a total of three
consecutive terms — the recall term (the unexpired one year portion of the 1992–1995
term) being considered as one term — followed by the 1995–1998 and the 1998–2001
terms. They thus conclude that private respondent should be deemed disqualified to run in
the 2001 elections, because an electoral victory on his part would have constituted his
fourth consecutive term. Consequently, he is ineligible to serve his present term (2001–
2004) as governor.
In arriving at this conclusion, petitioners relied heavily on the deliberations of the

Constitutional Commission on term limits; more specifically, on the opinion expressed by
Commissioner (now Chief Justice) Hilario G. Davide Jr. (quoted in Borja). In his view, a
senator or a congressman who would win a special election and serve the unexpired portion
of the term of a predecessor would already be considered as having served one term for
purposes of reckoning term limits.
The Petition argues that the same principle must apply equally to the recall terms of local
officials; otherwise the purpose of the three-term rule would be circumvented. That is, an
elective local official who has first served a recall term (as in the case of Respondent
Roman) would otherwise be elected to and hold the same elective position longer than
three consecutive terms.
The dissenters led by the esteemed Justice Angelina Sandoval-Gutierrez cite this Court’s
very recent ruling in Socrates v. Comelec, 6 which held that" [a]n official elected in recall
Josef Elvin Campos
election serves the unexpired term of the recalled official. This unexpired term is in itself one
term for purposes of counting the three-term limit. This is clear from the following discussion
in the Constitutional Commission: . . . Although the discussion referred to special elections
for Senators and Representatives of the House, the same principle applies to a recall
election of local officials. Otherwise an elective local official who serves a recall term can
serve for more than nine consecutive years comprising of the recall term plus the regular
three full terms. A local official who serves a recall term should know that the recall term is
in itself one term although less than three years. This is the inherent limitation he takes by
running and winning in the recall election." 7 [Italics supplied]
An Apparent Distinction That Does Not Make a Real Difference
The dissenters’ overriding concern is the possibility that an elective local official, like
Respondent Roman who first served a recall term, may be elected to and hold the same
position longer than three consecutive terms. With all due respect, I believe that such
concern is largely misplaced.
The private respondent in Borja was a vice mayor who succeeded to the office of mayor of
Pateros upon the death of the incumbent. After serving the latter’s unexpired term of two
years and ten months, the former ran for and was elected mayor for three more terms of
three years each. This Court ruled that he was not disqualified to serve the last term. The
three-term rule did not apply to him, because his first term (his succession to the mayoralty)
was not by virtue of an election but by operation of law.
By not disqualifying the said respondent, the Court permitted him to hold the same office for
an uninterrupted period totaling eleven years and ten months. How different is that case
from the present one in which Respondent Roman, if allowed to serve out his current term,
would be in office for a continuous period of only ten years? To argue and differentiate —
that in one case there was succession to office and in the other a recall election — would be
to quibble over an apparent distinction that does not make a real difference.
Petitioners opine that in establishing term limits, the Constitution intended to prevent a local
official from holding the same office for a period longer than three consecutive terms or a
total of nine years. Note, however, that whether the initial accession to office was by virtue
of succession/operation of law or by virtue of a recall election, the same evil (monopoly of
political power) might still arise at some point down the road.
In other words, the manner in which local officials first got into office is of no moment,
whether or not they will later proceed to monopolize political power and perpetuate
themselves in office. More plainly, one unusual mode of entry into public office would be
simplistically favored over another if one official is allowed to serve more than three terms,
on the ground that the excess was by virtue of a legal succession to a vacant office; and to
disallow another from so serving, simply because the excess was by reason of a recall
election. Specifically, assumption of office by operation of law would be favored over that by
recall election.
More significantly and disturbingly, such line of reasoning puts a higher premium on an
accidental or opportunistic succession to office (for example, through the death of the
incumbent local official) over a collective and earnest expression of the people’s sovereign
will (as through a recall election).
I cannot agree that a recall term must be deemed one full term for purposes of computing
the number of successive terms allowed. Under this theory, Respondent Roman is
disqualified from running for reelection in 2001 and thus ineligible to serve out his current
term of office. This would in effect cut short his service to less than nine years (the recall
term of one year plus two terms of 3 years each and the expired portion of his current term)
and thereby effectively shortchange his constituents. It would in effect uphold legalism over
the people’s will, the exercise of which was with the voters’ expectation that respondent
would serve out his entire three-year term from 2001 to 2004.
The Borja Doctrine Should Apply Equally to Succession and Recall
I cannot help but ask how reducing the stay of Respondent Roman in office could possibly
Josef Elvin Campos
make more sense than allowing him to hold on for one year more than the nine years
normally accorded to local officials. And here, the rationale in Borja seems to be altogether
apropos: "To consider C in the third case to have served the first term in full and therefore
ineligible to run a third time for reelection would be not only to falsify reality but also to
unduly restrict the right of the people to choose whom they wish to govern them. . . . To
consider C as eligible for reelection would be in accord with the understanding of the
choice is not unduly curtailed." 8
Still on the concept of the recall term being one term, as mentioned earlier, the dissenters
place much weight on the opinion expressed by then Commissioner Davide during the
discussions of the Constitutional Commission on term limits. Nevertheless and with due
respect, I see nothing in that exchange between him and Commissioner Suarez that would
in any manner support the claim that the recall term of an elective local official must be
treated as one term, in the same manner as the term of office of a senator or a
congressman who wins in a special election is deemed as such.
I have likewise scoured Borja, but found nothing that would support such a hypothesis.
Indeed, the only reason the exchange between the two respected commissioners was
quoted in that case was to highlight the difference between the situation of a vice mayor (an
elective local official), who succeeds to the mayorship by operation of law; and that of a
congressman, who is elected to fill a vacancy. In the latter instance, there is reason to
regard the service of the unexpired term as the congressman’s first term for purposes of
determining term limits. But that is neither here nor there, because that particular
pronouncement in Borja does not in any way shed light on the issue in this case, which
involves a recall term.
Socrates’ Pronouncement on Recall Was Merely an Obiter
This Court’s pronouncement in Socrates is of no avail either. The analysis therein, as

quoted earlier, cannot be regarded as controlling insofar as the instant case is concerned.
In that case, the main issue was whether a recall election that took place after the fourth
consecutive election had taken place was to be deemed an "immediate reelection" to a
fourth term. The Court answered "No," there was "no immediate reelection after three
consecutive terms." May I quote below the rationale it articulated in that
Decision:jgc:chanrobles.com.ph
"Clearly, what the Constitution prohibits is an immediate reelection for a fourth term
following three consecutive terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the reelection is not immediately after the
end of the third consecutive term: A recall election midway in the term following the third
executive term is a subsequent election but not immediate reelection after the third term." 9
Obviously then, the issues in Socrates did not include the question whether a recall term
should be considered one term for purposes of reckoning term limits. Therefore, the Court’s
ratiocination and analysis that a recall term is one term for purposes of counting the three-
term limit may be regarded merely as an obiter dictum.
Thus, I find no firm or sound jurisprudential basis for considering the recall term of an
elective local official as one term. Instead, I respectfully submit that, being much less than
the full term involved in the case of Respondent Roman, it should not be counted as one
term for purposes of reckoning the number of successive terms allowed; and that,
consequently, he should not be considered as being in breach of the three-term limit.
A Proper Balancing of Policies Is Needed
Borja stressed the need to strike a balance between enforcing the policy of preventing the
establishment of political dynasties and the policy of enhancing the freedom of choice of the
people. And as held in Socrates, the concept of term limits is, by its very nature, a restraint
on the sovereign will of the people to freely elect whomsoever they please. Term limits,
though ensconced in the Constitution, must thus be construed delicately to prevent them
from unduly subverting the manifest sovereign will of the electorate.
Josef Elvin Campos
I submit that term limits should refer and strictly apply to the normal or expected duration of
electoral terms, barring unexpected or unforeseen contingencies such as acts of nature or
political upheavals as in this case. As reiterated in Borja, the framers of the Constitution —
in their deliberations on Article X, Section 8 — "were as much concerned with preserving
the freedom of choice of the people as they were with preventing the monopolization of
political power."cralaw virtua1aw library
The Ponencia Would Result in Massive Disenfranchisement
Moreover, I believe that applying the holding in Socrates to the instant case, thereby
causing the unceremonious removal of the hapless governor from office, would be an
unwarranted "reaching back." It would be a retroactive and inappropriate application of a
jural doctrine to a situation that has never clearly and unmistakably violated any statutory or
constitutional prohibition. Furthermore, to paraphrase Aquino v. Comelec, 10 a retroactive
application of Socrates would lead to a massive disenfranchisement of tens of thousands of
voters who, through no fault of theirs, voted in favor of candidates whom they believed (and
who themselves believed that they) could be validly voted for.
Such an unhappy result, triggered by a legal technicality, would go against the guiding
principle in election law: that in every election, the people’s choice is the paramount
consideration; and their expressed will must, at all times, be given effect. 11 Of similar
import is our holding in Frivaldo v. Comelec, 12 reiterated in Torayno Sr. v. Comelec. 13 We
held therein that our electoral laws must be liberally and equitably construed in order "to
give fullest effect to the manifest will of our people, for in case of doubt, political laws must
be interpreted to give life and spirit to the popular mandate freely expressed through the
ballot. In other words, legal niceties and technicalities cannot stand in the way of the
sovereign will." 14
Obscure Legalisms Must Yield to Popular Sovereignty
Needless to say, after having won the last election by an overwhelming margin, 15 Mr.
Roman is unarguably the choice of the voters. This Court cannot simply turn a deaf ear to,
much less stifle, the people’s voice. Elections and the contests attendant thereto involve
public interest of the highest priority. Thus, technicalities and procedural barriers should not
be allowed to stand, if they constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials.
Verily, the resolution of this case hinges on a question of legal philosophy. Should this Court
interpret election laws literally in favor of obscure legalisms? Or liberally in favor of
upholding popular sovereignty? As held in Frivaldo:jgc:chanrobles.com.ph
"At balance, the question really boils down to a choice of philosophy and perception of how
to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit; the
naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or
in the context of social conditions; harshly against or gently in favor of the voters’ obvious
choice. In applying election laws, it would be far better to err in favor of popular sovereignty
than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected
candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and
an unacceptable assault upon this Court’s conscience." 16
In conformity with the legal philosophy set forth above, I should point out that petitioners
have not discharged their burden. They have not clearly demonstrated that the ineligibility of
respondent governor is so patently antagonistic to constitutional and legal principles that
overriding it and thereby giving effect to the people’s will would ultimately be more
prejudicial to the democratic fundamentals and juristic traditions of our country.
In Socrates, I voted with the majority, not so much because of the strict legal rationalization
that a recall election midway to the fourth term was not an "immediate election" after three
consecutive terms. Rather, I did so because the ponencia therein upheld the clear choice of
the people: Mr. Edward Hagedorn. I could not in conscience vote to place in office Petitioner
Dennis Socrates, who had clearly been defeated in the then just concluded recall election.
Verily, this Court did not inflict a rejected candidate upon the people of Puerto Princesa, for
Josef Elvin Campos
such action would have constituted "judicial tyranny and an unacceptable assault" upon its
own conscience.chanrob1es virtua1 1aw 1ibrary
By the same token, to unseat herein Respondent Leonardo B. Roman, the sitting governor
of Bataan, would constitute an unwelcome judicial imposition upon the people. To do so
would be to remove the one who has won the clear popular mandate in an honest and
credible election and to install in his place, by judicial fiat, an obscure candidate who has
been absolutely rejected by the electorate, or another official (the vice governor) whom
nobody voted for governor.
At bottom, tortuous and contentious legal arguments can be made in favor of either (1)
granting or (2) dismissing the herein Petition. In what would otherwise be a legal dead heat
arising from two conflicting legal positions of almost equal weight, I believe that, in an
election contest, the scales of justice should be tilted in favor of the people’s overwhelming
choice. Indeed, as earlier alluded to in the quotation at the beginning of this Opinion, "in
applying election laws, it would be far better to err in favor of popular sovereignty than to be
right in complex but little understood legalisms." Finally, in a democracy, people should —
as much as legally possible — be governed by leaders freely chosen by them during
credible elections.
WHEREFORE, in this instance, I choose to uphold popular sovereignty over complex and
contentious legalisms and thus vote to DISMISS the Petition.
I regret I am unable to agree with the decision of the majority of my brethren and I find it my
duty to express my dissent.
The focal issue in the present petition for certiorari, 1 is whether a governor, elected in a
recall election and who has held office for the unexpired term of his predecessor, is
considered to have served a full term for the purpose of applying the three (3)-term limit
under Section 8, Article X of the 1987 Constitution.
I take the affirmative stand.
For a clearer understanding of my position, a brief review of the antecedents is imperative.
Respondent Leonardo B. Roman held the post of governor of Bataan province for several
terms, to wit:chanrob1es virtual 1aw library
YEARS SERVED MANNER OF ASSUMPTION

a) 1986–1988 Appointed OIC Governor of the province of
Bataan by former President Corazon C. Aquino
and served up to 1988

b) 1988–1992 2 Elected Governor and served up to 1992
c) 1994–1995 Elected Governor during the RECALL election in
1993, assumed office on June 28, 1994 and served
up to 1995
d) 1995–1998 Elected Governor and served up to 1998
e) 1998–2001 Elected Governor and served up to 2001
f) 2001–2004 Elected Governor and presently the incumbent
Governor of Bataan
On May 25, 2001, petitioners Melanio Mendoza and Mario Ibarra, residents and registered
voters of Tenejero, Balanga, Bataan, filed with the COMELEC en banc a petition for quo
warranto, 3 docketed as EPC No. 2001-5. Petitioners alleged that respondent Roman has
served as governor of Bataan for three (3) consecutive terms counted from his assumption
Josef Elvin Campos
of office by virtue of the 1993 recall election. As such, he is disqualified/ineligible to seek a
fourth term for the same position in 2001, as he would violate the three-term limit for local
elective positions. Petitioners thus prayed that respondent Roman’s proclamation as the
elected governor of Bataan in the 2001 elections be nullified.
In a Resolution dated August 15, 2001, the COMELEC dismissed petitioners’ petition for
quo warranto on the ground that respondent Roman has not exceeded the three-term limit
because his service by virtue of the 1993 recall election cannot be counted as a full term
and, therefore, should not be considered in applying the three-term limit. The COMELEC’s
ruling reads in part:jgc:chanrobles.com.ph
". . . We again state, for the record, that the term of respondent (Roman) from 1995–1998
was his second full term if reckoned from his first full term from 1988-1992 and only for
purposes of applying the three (3)-term limit set forth by law. Hence, from the same
reckoning point, the third term was from 1998-2001. This was so because the 1993 recall
election was not counted as a full term and therefore, for purposes of the three-term limit,
was not included in the counting. It constituted an interruption in the service of the full term
of three (3) years which a local elective official should, under the law, serve fully for
purposes of counting the term limit.
"In the present case, the reckoning point is the 1995–1998 term of respondent, the 1995
elections being the first regular election from the interruption caused by the recall elections
of 1993. Applying this new time frame for purposes of the 2001 elections, the first term of
respondent was from 1995–1998. The second consecutive term was from 1998–2001 and
the third term will commence from June 2001 to June 2004." 4 (emphasis added)
Undaunted, petitioners come to this Court via the present petition maintaining that
respondent Roman violated the three-term limit rule for local elective officials when he ran
for reelection as governor in the 2001 elections and, therefore, his proclamation as such
should be set aside.
On February 26, 2002, Congressman Enrique T. Garcia, Jr. of the second district of Bataan
filed a petition-in-intervention which was admitted by this Court in its Resolution of March
19, 2002. 5 As a registered voter and Representative of his district, he joins petitioners in
questioning the eligibility of respondent Roman.
In his comment 6 on the petition, respondent Roman contends that he is eligible to run in
the May 14, 2001 elections "for the Office of Governor in the Province of Bataan" since he
did not serve the full 1992–1995 term; what he served was only "the unexpired portion of
Governor Enrique ‘Tet’ Garcia’s 1992 to 1995 term." 7 In support of his contention
respondent Roman cites Lonzanida v. Comelec 8 which held that the official concerned
should have fully served three consecutive terms in the same local government post for the
three-term limit to apply.
For its part, the Office of the Solicitor General (OSG) argued that the petition to declare
respondent Roman’s disqualification should be dismissed on the ground that a recall
election is not a regular election. 9 As such, service of an official elected in a recall election
should not be counted as a full term.
I find the petition meritorious.
Section 8, Article X of the 1987 Constitution provides:jgc:chanrobles.com.ph
"Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law shall be three years and no such officials shall serve for more than three
was elected." (emphasis added)
The above constitutional provision is echoed in Section 43 (b) of the Local Government
Code (Republic Act No. 7160), which reads:jgc:chanrobles.com.ph
"Sec. 43. Term of Office. — . . .

Josef Elvin Campos
"(b) No local elective official shall serve for more than three consecutive terms in the same
as an interruption in the continuity of service for the full term for which the elective official
concerned was elected." (emphasis added)
In applying the three-term limit to an elective official, the foregoing constitutional and
statutory provisions provide that (1) he should have been elected to a public office; and (2)
he should have served three consecutive terms for the same elective position. These two
requirements are present in the instant case, thus barring respondent from serving as
governor of Bataan from 2001 to 2004.
It bears emphasis that the said constitutional and statutory provisions on term limits make
no distinction as to the nature of the election — whether regular, special or recall elections.
The elementary rule in statutory construction is that where the law does not distinguish, the
courts should make no distinction (Ubi lex non distinguit nec nos distinguire debemos). 10
Indeed, these provisions do not confine the three-term rule to regular elections only. They
include any election (such as recall election) for the same position. As this Court ruled in
Borja, Jr. v. Commission on Elections and Jose T. Capco, through Mr. Justice Vicente V.
Mendoza: 11
". . . Art. X, Section 8 contemplates service by local officials for three consecutive terms as a
result of election. The first sentence speaks of ‘the term of office of elective local officials’
and bars ‘such officials’ from serving for more than three consecutive terms. The second
sentence, in explaining when an elective local official may be deemed to have served his
full term of office, states that ‘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.’ The term served must therefore be one ‘for which [the official concerned]
was elected.’ The purpose of this provision is to prevent a circumvention of the limitation on
the number of terms an elective local official may serve. . . . ." (emphasis added)
This Court has further ruled in Claudio v. Commission on Elections, 12 also through Mr.
Justice Mendoza, that "election" includes recall "by means of which voters decide whether
they should retain their local official or elect his replacement."cralaw virtua1aw library
On the requirement that the official should have served three consecutive terms, then
Commissioner Hilario G. Davide, Jr., now Chief Justice of this Court, expressed the
following opinion in answer to a query during the deliberations of the Constitutional
Commission that drafted the 1987 Constitution:jgc:chanrobles.com.ph
"Commissioner Suarez: For example, a special election is called for a Senator, and the
Senator newly elected would have to serve the unexpired portion of the term. Would that
mean that serving the unexpired portion of the term is already considered one term? So,
half a term, which is actually the correct statement, plus one term would disqualify the
Madam President?
"Commissioner Davide: Yes, because we speak of ‘term,’ and if there is a special election,
he will serve only for the unexpired portion of that particular term plus one more term for the
Senator and two more terms for the Members of the Lower House." 13 (emphasis added)
While the above discussion on term limits specifically refers to special elections for
Senators and Representatives, the same principle equally applies to a recall term of local
officials. The constitutional provision is explicit that "the term of office of elective local
officials, . . . shall be three years and no such officials shall serve for more than three
consecutive terms." In other words, the Constitution limits the service of elective local
officials to a total of nine consecutive years. To exclude the service of such official who won
the recall election would certainly permit a circumvention of the purpose of the three-term
rule, since he may hold the same elective position longer than three consecutive terms, or
more than the maximum nine consecutive years, as in the case of respondent Roman. In
the recent case of Socrates v. Comelec, 14 this Court en banc, speaking through Mr.
Justice Antonio T. Carpio, ruled:jgc:chanrobles.com.ph
Josef Elvin Campos
"This is clear from the following discussion in the Constitutional Commission: . . . . Although
the discussion referred to special elections for Senators and Representatives of the House,
the same principle applies to a recall election of local officials. Otherwise, an elective local
official who serves a recall term can serve for more than nine consecutive years comprising
of the recall term plus the regular three full terms. . . . ."cralaw virtua1aw library
At this juncture, it bears stressing that the object of the three-term limit is to forestall the
accumulation of massive political power by an elective local official who intends to
perpetuate himself in office. Another purpose is to broaden the choices of the electorate of
the candidates who will run for office, and to infuse new blood in the political arena by
disqualifying officials from running for the same office after serving nine (9) consecutive
years. 15 It is in the light of these objectives that this Court should interpret the
constitutional proscription. 16 The courts, in construing the Constitution, should consider the
object sought to be accomplished by its adoption, and the evils, if any, sought to be
prevented or remedied.
As shown earlier, respondent Roman served as governor of Bataan from 1986 up to the
present. To date, he has perpetuated himself in the said position for more than sixteen
years. Is this not precisely the vice that the framers of the Constitution intended to avert in
prescribing the three-term limit rule? To say that a recall term is not a full term is to provide
a fertile ground for circumventing the three-term limit rule. As in the construction of statutes,
the Constitution should be construed not so much according to the letter that killeth but in
line with the purpose for which it has been enacted. The Constitution is to be given such
construction as will advance its object, suppress or prevent the evil it seeks to avoid, and
secure the benefits intended. The interpretation of the Constitution should be done with a
view to realizing its fundamental objective. 17
This Court, just a month ago, emphatically declared in Socrates 18 that although an official
elected in a recall election serves the unexpired term of the recalled official, this "unexpired
term is in itself one term for purposes of counting the three-term limit." It went further in
saying that a "local official who serves a recall term should know that (such) term is in itself
one term although less than three years. This is the inherent limitation he takes by running
and winning in the recall election." It now boggles my mind why the majority has made a
complete turn-around and totally disregarded this significant pronouncement which could
have given life to the constitutional mandate.
In the law of public officers, there is a settled distinction between term and tenure. Term
means the time during which the officer may claim to hold the office as a matter of right.
Upon the other hand, tenure represents the period during which the incumbent actually
holds office. Tenure may be shorter than term for reasons within or beyond the power of the
incumbent. 19 In the case of herein respondent who was elected in a recall election, his
tenure was only for the remaining term of the recalled official, then Governor Garcia. Be that
as it may, his election is still for a particular term inasmuch as during the unserved period of
the recalled official, he has a claim to hold such office as a matter of right. In short, his
service for the remaining period is considered tenure for the full term for which he was
elected.
In fact, in Borja, 20 this Court, after citing the opinion of Father Joaquin G. Bernas and Chief
Justice Hilario G. Davide, Jr., then members of the Constitutional Commission, made the
categorical pronouncement that the unexpired portion of the term is rightly counted as a full
term, thus:jgc:chanrobles.com.ph
"Reference is made to Commissioner Bernas’ comment on Art. VI, Section 7, which

similarly bars members of the House of Representatives from serving for more than three
terms. Commissioner Bernas states that ‘if one is elected Representative to serve the
unexpired term of another, that unexpired term, no matter how short, will be considered one
term for the purpose of computing the number of successive terms allowed (Joaquin
Bernas, The 1987 Constitution 637 [1996]).
"This is actually based on the opinion expressed by Commissioner Davide in answer to a

query of Commissioner Suarez: ‘For example, a special election is called for a Senator, and
the Senator newly elected would have to serve the unexpired portion of the term. Would
that mean that serving the unexpired portion of the term is already considered one term? So
Josef Elvin Campos
half a term, which is actually the correct statement, plus one term would disqualify the
Madam President?’
"Commissioner Davide said: ‘Yes, because we speak of ‘term,’ and if there is a special
election, he will serve only for the unexpired portion of that particular term plus one more
term for the Senator and two more terms for the Members of the Lower House’ (2 Record
592, Session of August 7, 1986)."cralaw virtua1aw library
". . . . In a real sense, therefore, such Representative serves a term for which he was
elected. As the purpose of the constitutional provision is to limit the right to be elected and
to serve in Congress, his service of the unexpired term is rightly counted as his first term.
Rather than refute what we believe to be the intendment of Art. X, Section 8 with regard to
elective local officials, the case of a Representative who succeeds another confirms the
theory." (emphasis added)
Thus, although respondent only served the unexpired term of then Governor (now
Congressman) Enrique T. Garcia, Jr., the former’s recall term as governor of Bataan from
1994 to 1995 is rightly counted as his first term for purposes of applying the three-term limit.
This was immediately followed by his election to the same position for three more
consecutive terms, to wit: 1995 to 1998; 1998 to 2001; and 2001 to 2004. Considering that
his recall term is his first term, his reelections in the 1995 and the 1998 elections are his
second and third terms, respectively. Consequently, he is disqualified to run as governor in
the 2001 elections, as that would already be his fourth consecutive term.
Respondent Roman cites Lonzanida v. Comelec. 21 In this case, the two requisites for the
application of the three-term rule were absent so that the ban against holding a further term
did not apply to Lonzanida. To recall, Mayor Lonzanida was ordered by the COMELEC to
vacate his post on the ground that he was not duly elected. Thus, his severance from office
was involuntary and constituted an interruption of the continuity of his service under the
Constitution 22 and the law. 23 His renunciation being involuntary, this Court ruled that he
could not be considered to have served a full term for the purpose of applying the three-
term rule. As can be seen, the factual backdrop and the ratio decidendi of Lonzanida are
not on all fours with the present case. Respondent, therefore, cannot invoke this Court’s
ruling in Lonzanida.
In fine, I am fully convinced that respondent Roman is ineligible for the elective position of
governor of the province of Bataan.
The political system of our country is one of democratic and republican government. A
democratic government is necessarily a government of laws. Also, in a republican
government, these laws are decreed by the people through their representatives and
through them, the people dictate the qualifications as well as the disqualifications for service
in government positions. Respondent is clearly disqualified to serve as governor of the
Province of Bataan for 2001 to 2004 as he has exceeded the allowable term limit for local
elective officials. The will of a majority or plurality of the voters of the province of Bataan
should not be considered to have cured such disqualification. To do so will seriously violate
the fundamental law itself. Simply put, the will of respondent Roman’s constituency should
not prevail over the will of the entire Filipino people as expressed in the Constitution.
It is basic that the Constitution is the people’s quintessential act of sovereignty, embodying
the principles upon which the State and the government are founded. 24 Having the status
of a supreme and all-encompassing law, it speaks for all the people all the time, not just for
the majority or for the minority at intermittent times. Every constitution is a compact made by
and among the citizens of a State to govern themselves in a certain manner. 25 Mr. Justice
Artemio V. Panganiban himself, in Cruz v. Secretary of Environment and Natural
Resources, 26 assured that "the Philippine Constitution is a solemn covenant made by all
the Filipinos to govern themselves. No group, however blessed, and no sector, however
distressed, is exempt from its compass."cralaw virtua1aw library
Indeed, this is a sad day for me. Perhaps I will never understand why the majority has
allowed the will of respondent Roman’s constituency to prevail over the will of the entire
Filipino people, thus completely disregarding the noble purpose of the constitutional three-
Josef Elvin Campos
term limit rule.
WHEREFORE, I vote to GRANT the petition and SET ASIDE the challenged Resolution of
the COMELEC en banc dated August 15, 2001 in EPC No. 2001-5. Respondent Leonardo
B. Roman is declared ineligible to assume office as governor of the province of Bataan for
the term 2001–2004.
CARPIO, J.:
I dissent. Respondent Leonardo B. Roman was disqualified to run for Governor of Bataan in
the May 14, 2001 elections since he had been elected successively to the same office in the
1994 recall election and in the 1995 and 1998 regular elections.
The applicable provision is Section 8, Article X of the 1987 Constitution which provides as
follows:jgc:chanrobles.com.ph
"The term of office of elective local officials, except barangay officials, which shall be
was elected." 1
The sole issue is whether a recall term is considered as one term for purposes of counting
the three-term limit of elective local officials. I see no other way but to consider a recall term
as one term.
First, the framers of the 1987 Constitution unmistakably intended a recall term, which is the
unexpired term of the recalled official, to be considered as one term for counting term limits.
The following exchange during the deliberations of the Constitutional Commission shows
this clear intent, thus:jgc:chanrobles.com.ph
"MR. SUAREZ: For example, a special election is called for a Senator, and the Senator
newly elected would have to serve the unexpired portion of the term. Would that mean that
serving the unexpired portion of the term is already considered one term? So, half a term,
which is actually the correct statement, plus one term would disqualify the Senator
concerned from running? Is that the meaning of this provision on disqualification, Madam
President?
MR. DAVIDE: Yes, because we speak of ‘term,’ and if there is a special election, he will
serve only the unexpired portion of that particular term plus one more term for the Senator
and two more terms for the Members of the Lower House." 2
While the foregoing exchange referred specifically to special elections for Senators and
Representatives, the same principle applies with equal force to the recall term of elective
local officials. To hold otherwise would allow a local official to be elected, and to serve, for
more than nine consecutive years in the same position. This is the case of respondent
Roman who would be serving a total of more than ten consecutive years as Governor of
Bataan if he were not disqualified to run in the 2001 elections.
Second, the framers of the 1987 Constitution unmistakably intended that elective local
officials should not be elected to serve continuously for more than nine years in the same
position. The records of the Constitutional Commission reveal that the three-term limit of
Representatives and local officials was clearly understood to mean a maximum period of
nine consecutive years. Thus:jgc:chanrobles.com.ph
"MR. MONSOD: Madam President, I think the vote on continuous service of nine years for
the Members of the House of Representatives or the lifetime limitation of three terms has a
very serious implication. . . . ." 3
x x x
"MR. DAVIDE: The other proposal, Madam President, is: These officials who can seek two
Josef Elvin Campos
reelections can serve for a total of nine years, after that, they can seek another
reelection. . . . ." 4
x x x
"MR. GARCIA: I would like to advocate the proposition that no further election for local and
legislative officials be allowed after a total of three terms or nine years. . . . .
x x x
Turnovers in public office after nine years will ensure that new ideas and new approaches
will be welcome. . . . ." 5
x x x
"MR. DE CASTRO: . . . I understand that the three terms mentioned there are only for nine
years. . . . ." 6
x x x
"MR. GARCIA: I am sorry again, but for the first election, the term of office will have to be
fixed by the Commission on Elections simply for adjustment purposes because of the
current term of the President, for synchronization and for transitory purposes. But once it is
regularized, it will be different.
MR. DE CASTRO: Is it a total of nine years?
MR. GARCIA: Yes, it is a total of nine years.

x x x
MR. GARCIA: To make sure that the term is not more than nine years, if possible and if not,
we can give them a term of more or less one to two years, depending on how it can be
adjusted." 7
Indisputably, the framers of the Constitutional Commission intended the three-term limit to
mean a maximum service of nine consecutive years. This intent is clear, definite and
unequivocal. To rule that a recall term should be totally ignored in counting the three-term
limit will allow local officials to be elected to serve for more than nine consecutive years
contrary to the manifest intent of the framers of the Constitution. This is exactly what will
happen if respondent Roman’s recall term is not counted in computing the three-term limit,
for Roman will then serve as Governor for more than ten consecutive years.
The framers of the Constitution have fixed the term limit of elective local officials at three
consecutive terms, with a clear intention that the total shall not exceed nine years. They
have also intended that election to an unexpired term shall be considered as one term for
purposes of counting the three-term limit. The intention of the framers of the Constitution,
just like the intention of legislators who draft a statute, certainly deserves great weight.
When such intention is clear, definite and unequivocal, the intention becomes controlling as
it expresses the true spirit of the Constitution or the law. As this Court aptly stated, "The
fundamental principle of constitutional construction is to give effect to the intent of the
framers of the organic law and the people adopting it." 8
Third, the 1987 Constitution does not require a public official, whether elective or appointive,
to serve his full term in order to be disqualified from re-election or reappointment. A clear
example is a Vice-President who succeeds by operation of law as President. If the Vice-
President succeeds to the Presidency to serve an unexpired term of more than four years,
he is disqualified from running for President. Section 4, Article VII of the Constitution states
that" [N]o person who has succeeded as President and has served as such for more than
four years shall be qualified for election to the same office at any time."cralaw virtua1aw
library
Similarly, one appointed to serve the unexpired term of a member of the Civil Service
Josef Elvin Campos
Commission or the Commission on Elections is disqualified from reappointment even if the
unexpired term is less than the full term of seven years. Appointment to these constitutional
bodies is "without reappointment" 9 and" [A]ppointment to any vacancy shall be only for the
unexpired term of the predecessor." 10 Unquestionably, the Constitution does not require
complete service of a full term of office before the relevant constitutional disqualification
attaches.
Fourth, the instant case is not a situation where the official succeeded by operation of law to
the office and served the unexpired term of his predecessor as in Borja, Jr. v. Comelec 11
where the unexpired term was not counted in computing the three-term limit. Here,
respondent Roman was elected to serve the unexpired term of his predecessor. To say that
the recall term is a stray term, belonging to no elected official in counting the three-term
limit, is to ignore reality. A recall term arises from a special election for a fixed term of office
— the unexpired term of the recalled official. The official elected in a recall election has the
same functions and powers as an official elected to the same office in a regular election.
The recall term is a legal and political fact that cannot just be dismissed as a stray term.
In Adormeo v. Comelec 12 and Socrates v. Comelec, 13 we ruled that the recall term is not
consecutive to the previous terms of one who wins the recall election against the recalled
official. The term of office of the incumbent or recalled official serves to break the continuity
of service of the comebacking official who wins a recall election. But a recall term of an
official who is re-elected in the next two regular elections, like that of respondent Roman in
the instant case, is not interrupted by any term of another official. Thus, such recall term
should be counted in computing the three-term limit.
Fifth, to consider a recall term as a stray term will encourage a person disqualified because
of the three-term limit to agitate for the recall of his immediate successor. We held in
Socrates that such a person can run in a recall election. If he wins and his recall term is not
counted in computing the three-term limit, then he has nothing to lose and everything to
gain by agitating for a recall election. This will remove the stability of the term of office of his
immediate successor, and subject the people to too many elections within a short period.
But if the recall term is counted as one term, then the truncated term serves as an inherent
limitation and natural disincentive to those who would otherwise agitate for a recall election
because they cannot wait for the next regular elections.
Sixth, that respondent Roman won as Governor in the 2001 elections cannot serve to
exempt him from the three-term limit mandated by the Constitution. The vote of the people
of Bataan, while overwhelmingly for Roman, cannot overcome the vote of the people of the
entire Philippines when they ratified the Constitution that now mandates the three-term limit.
Besides, we must resolve the constitutional issue here without regard to the accidental
circumstance that respondent Roman won overwhelmingly, for this constitutional issue
could also have been raised in a case where the margin of victory was whisker-thin.
We do not decide this constitutional issue because the people of Bataan have strongly
clamored for Roman’s leadership as their Governor, but because we must apply the clear,
definite and unequivocal intent of the framers of the Constitution. We do not decide this
constitutional issue to meet the exigency of Roman’s remarkable election victory in the 2001
elections despite his disqualification, but to guide all those who will run for public office
through the ages for as long as the same constitutional three-term limit remains in place.
Accordingly, I vote to grant the petition.
AZCUNA, J.:
The adoption of term limits is new to our polity. It is a departure from the rule that in a
democracy the sovereign people can choose whoever is fit and qualified to be their leader
for as often as is their will.
The restriction has for its reason the concern against accumulation of power resulting from
prolonged stay in office.
These two ideas, however, represent the rule and the exception. The rule is the
Josef Elvin Campos
fundamental tenet of representative democracy that the people should be allowed to choose
those whom they please to govern them. The exception is the term limit provided for in the
Constitution.
It follows that in applying the exception, it must be strictly construed, so that only if it clearly
applies should it be applied.
To my mind, the provision in question, the term limit for elective local officials, applies only if
such official has served three consecutive terms in full.
Consequently, service of less than a full term, be it succession or recall election, does not
count in determining whether such official has served three consecutive terms.
The Constitution is clear. The terms must be consecutive and the service must be full, for
the prohibition to apply:jgc:chanrobles.com.ph
"Sec. 8, Art. X. The term of office of elective local officials, except barangay officials, which
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." (Emphasis supplied.)
Once these conditions obtain, however, the prohibition sets in and what is prohibited is not
simply an "immediate reelection," 1 as contended by the majority in Socrates v. Comelec, 2
but rather serving for more than three consecutive terms, i. e., service in the immediately
following term, the fourth term.
Serving during such term, whether from the start, in the middle or at the end, would still
consist in service "for more than three consecutive terms." In reference to the prohibited
service, it is not required that it be for the full term. What is proscribed is service, of any
length, during the prohibited term, for such would still constitute service for more than three
consecutive terms.
There was a clear intent to require the person who has served in full the number of
consecutive terms, in this case three, to rest until the election for the term not immediately
following the last of the consecutive terms served. Hence, in Socrates I joined in the
separate opinion of the Chief Justice, as I agreed with him that once an elected local official,
in that case a mayor, has served three consecutive terms in full, that person cannot serve
for any time during the immediately following term, whether by immediate reelection or by
recall election.
In the present case, respondent Roman’s election as governor in the recall election of 1992
should not be counted as one full term. For the disqualification to attach, three consecutive
terms must be served in full. This is the exception to the rule, so it must be strictly complied
with. Service for less than a full term, except only in case of voluntary renunciation, should
not be counted to determine the existence of the disqualification.
I therefore vote to DISMISS the petition in this case and to declare respondent Leonardo B.
Roman as NOT DISQUALIFIED to run for governor in the election of May 14, 2001, as this
was only for his third consecutive term.chanrob1es virtua1 1aw 1ibrary
Rivera III v. Comelec (G.R. No. 167591, 09 May 2007)

G.R. No. 167591 May 9, 2007
ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners,
vs.
COMELEC and MARINO "BOKING" MORALES, Respondents.
x---------------------------------------------x
G.R. No. 170577 May 9, 2007
ANTHONY D. DEE, Petitioner,
vs.
COMELEC and MARINO "BOKING" MORALES, Respondents.
DECISION
Josef Elvin Campos
For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997
Rules of Civil Procedure, as amended, assailing the Resolutions dated March 14, 2005 and
November 8, 2005 of the COMELEC En Banc.
G.R. No. 167591
ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC
and MARINO "BOKING" MORALES
In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking"
Morales ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July
1, 2004 to June 30, 2007. Prior thereto or on January 5, 2004, he filed his Certificate of
Candidacy.
On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners,
filed with the Second Division of the Commission on Elections (COMELEC) a petition to
cancel respondent Morales’ Certificate of Candidacy on the ground that he was elected and
had served three previous consecutive terms as mayor of Mabalacat. They alleged that his
candidacy violated Section 8, Article X of the Constitution and Section 43 (b) of Republic
Act (R.A.) No. 7160, also known as the Local Government Code.
In his answer to the petition, respondent Morales admitted that he was elected mayor of
Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1,
2001 to June 30, 2004 (third term), but he served the second term from July 1, 1998 to June
30, 2001 only as a "caretaker of the office" or as a "de facto officer" because of the following
reasons:
a. He was not validly elected for the second term 1998 to 2001 since his
proclamation as mayor was declared void by the Regional Trial Court (RTC), Branch
57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case (EPC)
No. 98-131. The Decision became final and executory on August 6, 2001; and
b. He was preventively suspended by the Ombudsman in an anti-graft case from
January 16, 1999 to July 15, 1999.
On May 6, 2004, the COMELEC Second Division rendered its Resolution finding
respondent Morales disqualified to run for the position of municipal mayor on the ground
that he had already served three (3) consecutive terms. Accordingly, his Certificate of
Candidacy was cancelled. On May 7, 2004, he filed with the COMELEC En Banc a motion
for reconsideration.
On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent
Morales’ motion for reconsideration and setting aside that of the Second Division. The
COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC, Branch 57,
Angeles City declared respondent Morales’ proclamation void, his discharge of the duties in
the Office of the Mayor in Mabalacat is that of a de facto officer or a de facto mayor.
Therefore, his continuous service for three consecutive terms has been severed.
Hence, this petition for certiorari.
G.R. No. 170577
ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES
On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of
Mabalacat for the term commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee,
also a candidate for mayor, filed with the RTC, Branch 61, Angeles City a petition for quo
warranto against the said respondent. Petitioner alleged that respondent Morales, having
served as mayor for three consecutive terms, is ineligible to run for another term or fourth
term. The case was docketed as Civil Case No. 11503.
In his answer, respondent Morales raised the following defenses:
a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57,
Angeles City declared in its Decision that his proclamation as mayor of Mabalacat
was void. Petitioner Dee was then proclaimed the duly elected mayor; and
b. He was preventively suspended for six months by the Ombudsman, during the
same term in an anti-graft case, an interruption in the continuity of his service as
municipal mayor of Mabalacat.1
In its Decision dated November 22, 2004, the RTC dismissed petitioner Dee’s petition for
quo warranto on the ground that respondent Morales did not serve the three-term limit since
he was not the duly elected mayor of Mabalacat, but petitioner Dee in the May 1998
elections for the term 1998 to 2001, thus:
Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in
the May 1998 elections for the term 1998 to 2001 because although he was proclaimed as
the elected mayor of Mabalacat, Pampanga by the Municipal Board of Canvassers, had
assumed office and discharged the duties of mayor, his close rival, the herein petitioner,
Anthony D. Dee, was declared the duly elected Mayor of Mabalacat, Pampanga in the
Josef Elvin Campos
Decision promulgated on April 2, 2001 in Election Protest EPC No. 98-131 filed by Anthony
Dee against herein respondent, Marino Morales, and decided by RTC, Br. 57, Angeles City.
x x x.
Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that
respondent Morales violated the three-term limit rule when he ran for re-election (fourth
time) as mayor in the 2004 elections. Consequently, his proclamation as such should be set
aside. In a Resolution dated July 29, 2005 the COMELEC First Division issued a Resolution
dismissing the appeal. It held that respondent Morales cannot be deemed to have served as
mayor of Mabalacat during the term 1998 to 2001 because his proclamation was declared
void by the RTC, Branch 57 of Angeles City. He only served as a caretaker, thus, his
service during that term should not be counted.
On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for
reconsideration. In a Resolution dated November 8, 2005, the COMELEC En Banc affirmed
the questioned Resolution of the Second Division.
Hence, petitioner Dee’s instant petition for certiorari.
Both cases may be decided based on the same facts and issues.
It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat
for the following consecutive terms:
a) July 1, 1995 to June 30, 1998
b) July 1, 1998 to June 30, 2001
c) July 1, 2001 to June 30, 2004
d) July 1, 2004 to June 30, 2007
THE PRINCIPAL ISSUE. –
Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007
term is not his fourth because his second term, July 1, 1998 to June 30, 2001 to which he
was elected and which he served, may not be counted since his proclamation was declared
void by the RTC, Branch 57 of Angeles City.
Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved
the same issue in Ong v. Alegre2 with identical facts, thus:
To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other
for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently
proclaimed by the COMELEC winner in the contest. Alegre subsequently filed an election
protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet,
Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998
mayoralty contest, albeit the decision came out only on July 4, 2001, when Francis had fully
served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-
2004 term as mayor-elected for the municipality of San Vicente.
xxx
A resolution of the issues thus formulated hinges on the question of whether or not
petitioner Francis’ assumption of office as mayor of San Vicente, Camarines Norte for the
mayoralty term 1998 to 2001 should be considered as full service for the purpose of the
three-term limit rule.
Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the
other hand, disagrees. He argues that, while he indeed assumed office and discharged the
duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-
elected in the May 1998 election was contested and eventually nullified per the Decision of
the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues,
citing Lonzanida v. Comelec, that a proclamation subsequently declared void is no
proclamation at all and one assuming office on the strength of a protested proclamation
does so as a presumptive winner and subject to the final outcome of the election protest.
xxx
For the three-term limit for elective local government officials to apply, two conditions or
requisites must concur, to wit: (1) that the official concerned has been elected for three (3)
consecutive terms in the same local government post, and (2) that he has fully served three
(3) consecutive terms.
With the view we take of the case, the disqualifying requisites are present herein, thus
effectively barring petitioner Francis from running for mayor of San Vicente, Camarines
Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong
having been duly elected mayor of that municipality in the May 1995 and again in the May
2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30,
2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term,
albeit there can also be no quibbling that Francis ran for mayor of the same municipality in
the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a
Josef Elvin Campos
proclamation initially declaring him mayor-elect of the municipality of San Vicente. The
question that begs to be addressed, therefore, is whether or not Francis’ assumption of
office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may
be considered as one full term service in the context of the consecutive three-term limit rule.
We hold that such assumption of office constitutes, for Francis, "service for the full term,"
and should be counted as a full term served in contemplation of the three-term limit
prescribed by the constitutional and statutory provisions, supra, barring local elective
officials from being elected and serving for more than three consecutive terms for the same
position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that
it was Francis’ opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was
the legally elected mayor of San Vicente. However, that disposition, it must be stressed,
was without practical and legal use and value, having been promulgated after the term of
the contested office has expired. Petitioner Francis’ contention that he was only a
presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did
not make him less than a duly elected mayor. His proclamation by the Municipal Board of
Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election
contrary view would mean that Alegre would-under the three-term rule-be considered as
election.
Petitioner cites, but, to our mind, cannot seek refuge from the Court’s ruling in Lonzanida v.
Comelec, citing Borja v. Comelec. In Lonzanida, petitioner Lonzanida was elected and
served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8,
1995 elections. He then ran again for the same position in the May 1995 elections, won and
discharged his duties as Mayor. However, his opponent contested his proclamation and
filed an election protest before the RTC of Zambales, which, in a decision dated January 8,
1997, ruled that there was a failure of elections and declared the position vacant. The
COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the
post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now,
during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition
to disqualify, under the three-term rule, was filed and was eventually granted. There, the
Court held that Lonzanida cannot be considered as having been duly elected to the post in
the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by
reason of involuntary relinquishment of office. As the Court pointedly observed,
Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he was
ordered to vacate [and in fact vacated] his post before the expiration of the term."
The difference between the case at bench and Lonzanida is at once apparent. For one, in
Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason
of "failure of election," and, as a consequence thereof, the proclamation of Lonzanida as
mayor-elect was nullified, followed by an order for him to vacate the office of the mayor. For
another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an
involuntary severance from office as a result of legal processes. In fine, there was an
effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case. But
more importantly, here, there was actually no interruption or break in the continuity of
Francis’ service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never
unseated during the term in question; he never ceased discharging his duties and
responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the
1998-2001 term.
It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed
the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But
his proclamation as mayor in the May 1998 election was declared void by the RTC of Daet,
Camarines Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for
the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him.
Indeed, there is no reason why this ruling should not also apply to respondent Morales who
is similarly situated.
Here, respondent Morales invoked not only Lonzanida v. COMELEC, 3 but also Borja, Jr. v.
Commission on Elections4 which is likewise inapplicable. The facts in Borja are:
Josef Elvin Campos
Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998
for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of
law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was
elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he
was reelected mayor for another term of three years ending June 30, 1998.
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of
Pateros relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was
also a candidate for mayor, sought Capco’s disqualification on the theory that the latter
would have already served as mayor for three consecutive terms by June 30, 1998 and
would therefore be ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of
petitioner and declared private respondent Capco disqualified from running for reelection as
mayor of Pateros. However, on motion of private respondent, the COMELEC en
banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the
May 11, 1998 elections. x x x
This Court held that Capco’s assumption of the office of mayor upon the death of the
incumbent may not be regarded as a "term" under Section 8, Article X of the Constitution
and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He held the position
from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he
was not elected to that position.
Similarly, in Adormeo v. COMELEC,5 this Court ruled that assumption of the office of mayor
in a recall election for the remaining term is not the "term" contemplated under Section 8,
Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government
Code). As the Court observed, there was a "break" in the service of private respondent
Ramon T. Talanga as mayor. He was a "private citizen" for a time before running for mayor
in the recall elections.
Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He
assumed the position. He served as mayor until June 30, 2001. He was mayor for the
entire period notwithstanding the Decision of the RTC in the electoral protest case filed by
petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v.
Alegre,6 such circumstance does not constitute an interruption in serving the full term.
Section 8, Article X of the Constitution can not be more clear and explicit –
The term of the office of elected local officials x x x, shall be three years and no such official
shall serve for more than three consecutive terms. x x x
Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly
provides:
No local official shall serve for more than three consecutive terms in the same position. x x x
Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat
continuously without any break since July 1, 1995. In just over a month, by June 30, 2007,
he will have been mayor of Mabalacat for twelve (12) continuous years.
In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit, thus:
The framers of the Constitution, by including this exception, wanted to establish some
safeguards against the excessive accumulation of power as a result of consecutive terms.
As Commissioner Blas Ople stated during the deliberations:
x x x I think we want to prevent future situations where, as a result of continuous service
and frequent re-elections, officials from the President down to the municipal mayor tend to
develop a proprietary interest in their positions and to accumulate these powers and
prerequisites that permit them to stay on indefinitely or to transfer these posts to members
of their families in a subsequent election. x x x
xxx
It is evident that in the abovementioned cases, there exists a rest period or a break in the
service of local elective official. In Lonzanida, petitioner therein was a private citizen a few
months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private
respondents therein lived as private citizens for two years and fifteen months respectively.
Indeed, the law contemplates a rest period during which the local elective official steps
territorial jurisdiction of a particular local government unit.
position of city mayor after having served for three consecutive terms as municipal mayor
Josef Elvin Campos
Should he be allowed another three consecutive term as mayor of the City of Digos,
scenario sought to be avoided by the Constitution, if not abhorred by it.
This is the very situation in the instant case. Respondent Morales maintains that he served
his second term (1998 to 2001) only as a "caretaker of the office" or as a " de facto officer."
Section 8, Article X of the Constitution is violated and its purpose defeated when an official
serves in the same position for three consecutive terms. Whether as "caretaker" or " de
facto" officer, he exercises the powers and enjoys the prerequisites of the office which
enables him "to stay on indefinitely".
Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.
G.R. No. 167591 –
Having found respondent Morales ineligible, his Certificate of Candidacy dated December
30, 2003 should be cancelled. The effect of the cancellation of a Certificate of Candidacy is
provided under Sections 6 and 7 of R.A. No. 6646, thus:
SECTION 6. Effect of Disqualification Case. – Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him shall not
be counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes in
such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during
the pendency thereof order the suspension of the proclamation of such candidate whenever
the evidence of guilt is strong.
SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. – The
procedure hereinabove provided shall apply to petitions to deny due course to or cancel a
certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.
in relation to Section 211 of the Omnibus Election Code, which provides:
SEC. 211. Rules for the appreciation of ballots. – In the reading and appreciation of ballots,
every ballot shall be presumed to be valid unless there is clear and good reason to justify its
rejection. The board of election inspectors shall observe the following rules, bearing in mind
that the object of the election is to obtain the expression of the voter’s will:
xxx
19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a
candidate for an office for which he did not present himself shall be considered as a stray
vote but it shall not invalidate the whole ballot.
xxx
In the light of the foregoing, respondent Morales can not be considered a candidate in the
May 2004 elections. Not being a candidate, the votes cast for him SHOULD NOT BE
COUNTED and must be considered stray votes.
G.R. No. 170577 –
Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of
Mabalacat, the instant petition for quo warranto has become moot.
Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or
petitioner Dee who shall serve for the remaining portion of the 2004 to 2007 term.
In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be
proclaimed as a substitute winner, thus:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle
the eligible candidate receiving the next highest number of votes to be declared elected. A
minority or defeated candidate cannot be deemed elected to the office.
xxx
It is therefore incorrect to argue that since a candidate has been disqualified, the votes
intended for the disqualified candidate should, in effect, be considered null and void. This
would amount to disenfranchising the electorate in whom sovereignty resides. At the risk of
being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without
any intention to misapply their franchise, and in the honest belief that Labo was then
qualified to be the person to whom they would entrust the exercise of the powers of the
government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume
the office.
Whether or not the candidate whom the majority voted for can or cannot be installed, under
no circumstances can minority or defeated candidate be deemed elected to the office.
Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471
votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p.
109; GR No. 105111).
Josef Elvin Campos
xxx
As a consequence of petitioner’s ineligibility, a permanent vacancy in the contested office
has occurred. This should now be filled by the vice-mayor in accordance with Section 44 of
the Local Government Code, to wit:
Sec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor and
Vice-Mayor. – (a) If a permanent vacancy occurs in the office of the governor or mayor, the
vice-governor or the vice-mayor concerned shall become the governor or mayor. x x x
WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales’
Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in
the Office of the Mayor in Mabalacat, Pampanga, the vice-mayor elect of the said
municipality in the May 10, 2004 Synchronized National and Local Elections is hereby
declared mayor and shall serve as such for the remaining duration of the term July 1, 2004
to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
Dizon v. Comelec (G.R. No. 182088, 30 January 2009)

G.R. No. 182088 January 30, 2009
ROBERTO L. DIZON, Petitioner,
vs
COMMISSION ON ELECTIONS and MARINO P. MORALES, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and prohibition, with prayer for the issuance of a temporary
restraining order and writ of preliminary injunction under Rule 65 of the 1997 Rules of Civil
Procedure. The present petition seeks the reversal of the Resolution dated 27 July 2007 of
the Commission on Elections’ (COMELEC) Second Division which dismissed the petition to
disqualify and/or to cancel Marino P. Morales’ (Morales) certificate of candidacy, as well as
the Resolution dated 14 February 2008 of the COMELEC En Banc which denied Roberto L.
Dizon’s (Dizon) motion for reconsideration.
The Facts
The COMELEC Second Division stated the facts as follows:
Roberto L. Dizon, hereinafter referred to as petitioner, is a resident and taxpayer of the
Municipality of Mabalacat, Pampanga. Marino P. Morales, hereinafter referred to as
respondent, is the incumbent Mayor of the Municipality of Mabalacat, Pampanga.
Petitioner alleges respondent was proclaimed as the municipal mayor of Mabalacat,
Pampanga during the 1995, 1998, 2001 and 2004 elections and has fully served the same.
Respondent filed his Certificate of Candidacy on March 28, 2007 again for the same
position and same municipality.
Petitioner argues that respondent is no longer eligible and qualified to run for the same
position for the May 14, 2007 elections under Section 43 of the Local Government Code of
1991. Under the said provision, no local elective official is allowed to serve for more than
three (3) consecutive terms for the same position.
Respondent, on the other hand, asserts that he is still eligible and qualified to run as Mayor
of the Municipality of Mabalacat, Pampanga because he was not elected for the said
position in the 1998 elections. He avers that the Commission en banc in SPA Case No. A-
04-058, entitled Atty. Venancio Q. Rivera III and Normandick P. De Guzman vs. Mayor
Marino P. Morales, affirmed the decision of the Regional Trial Court of Angeles City
declaring Anthony D. Dee as the duly elected Mayor of Mabalacat, Pampanga in the 1998
elections.
Respondent alleges that his term should be reckoned from 2001 or when he was
proclaimed as Mayor of Mabalacat, Pampanga. Respondent further asserts that his election
in 2004 is only for his second term. Hence, the three term rule provided under the Local
Government Code is not applicable to him.
Respondent further argues that the grounds stated in the instant petition are not covered
under Section 78 of the Omnibus Election Code. Respondent further contend [sic] that even
if it is covered under the aforementioned provision, the instant petition failed to allege any
material misrepresentation in the respondent’s Certificate of Candidacy. 1
The Ruling of the COMELEC Second Division
Josef Elvin Campos
In its Resolution dated 27 July 2007, the COMELEC Second Division took judicial notice of
this Court’s ruling in the consolidated cases of Atty. Venancio Q. Rivera III v. COMELEC
and Marino "Boking" Morales in G.R. No. 167591 and Anthony Dee v. COMELEC and
Marino "Boking" Morales in G.R. No. 170577 (Rivera case) promulgated on 9 May 2007.
The pertinent portions of the COMELEC Second Division’s ruling read as follows:
Respondent was elected as mayor of Mabalacat from July 1, 1995 to June 30, 1998. There
was no interruption of his second term from 1998 to 2001. He was able to exercise the
powers and enjoy the position of a mayor as "caretaker of the office" or a "de facto officer"
until June 30, 2001 notwithstanding the Decision of the RTC in an electoral protest case. He
was again elected as mayor from July 1, 2001 to June 30, 2003 [sic].
It is worthy to emphasize that the Supreme Court ruled that respondent has violated the
three-term limit under Section 43 of the Local Government Code. Respondent was
considered not a candidate in the 2004 Synchronized National and Local Elections. Hence,
his failure to qualify for the 2004 elections is a gap and allows him to run again for the same
position in the May 14, 2007 National and Local Elections.
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby
RESOLVES to DENY the instant Petition to Cancel the Certificate of Candidacy and/or
Petition for the Disqualification of Marino P. Morales for lack of merit. 2
Dizon filed a motion for reconsideration before the COMELEC En Banc.
The Ruling of the COMELEC En Banc
The COMELEC En Banc affirmed the resolution of the COMELEC Second Division.
The pertinent portions of the COMELEC En Banc’s Resolution read as follows:
Respondent’s certificate of candidacy for the May 2004 Synchronized National and Local
Elections was cancelled pursuant to the above-mentioned Supreme Court decision which
was promulgated on May 9, 2007. As a result, respondent was not only disqualified but was
also not considered a candidate in the May 2004 elections.
Another factor which is worth mentioning is the fact that respondent has relinquished the
disputed position on May 16, 2007. The vice-mayor elect then took his oath and has
assumed office as mayor of Mabalacat on May 17, 2007 until the term ended on June 30,
2007. For failure to serve for the full term, such involuntary interruption in his term of office
should be considered a gap which renders the three-term limit inapplicable.
The three-term limit does not apply whenever there is an involuntary break. The
Constitution does not require that the interruption or hiatus to be a full term of three years.
What the law requires is for an interruption, break or a rest period from a candidate’s term of
office "for any length of time." The Supreme Court in the case of Latasa v. Comelec ruled:
Indeed, the law contemplates a rest period during which the local elective official steps
territorial jurisdiction of a particular local government unit.
In sum, the three-term limit is not applicable in the instant case for lack of the two
conditions: 1) respondent was not the duly-elected mayor of Mabalacat for the July 1, 2004
to June 30, 2007 term primordially because he was not even considered a candidate
thereat; and 2) respondent has failed to serve the entire duration of the term of office
because he has already relinquished the disputed office on May 16, 2007 which is more
than a month prior to the end of his supposed term.
xxx
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby
RESOLVES, to DENY the instant Motion for Reconsideration for LACK OF MERIT. The
Resolution of the Commission Second Division is hereby AFFIRMED.
SO ORDERED.3
The Issues
Dizon submits that the factual findings made in the Rivera case should still be applied in the
present case because Morales had, except for one month and 14 days, served the full term
of 2004-2007. Morales’ assumption of the mayoralty position on 1 July 2007 makes the
2007-2010 term Morales’ fifth term in office. Dizon raises the following grounds before this
Court:
1. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK
OR EXCESS OF ITS JURISDICTION WHEN IT RULED THAT RESPONDENT
MORALES DID NOT VIOLATE THE THREE-YEAR TERM LIMIT WHEN HE RAN
AND WON AS MAYOR OF MABALACAT, PAMPANGA DURING THE MAY 14,
2007 ELECTION.
2. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT RULED THAT DUE TO THIS
HONORABLE COURT’S RULING IN THE AFORESAID CONSOLIDATED CASES,
Josef Elvin Campos
RESPONDENT MORALES’ FOURTH TERM IS CONSIDERED A GAP IN THE
LATTER’S SERVICE WHEN HE FILED HIS CERTIFICATE OF CANDIDACY FOR
THE 2007 ELECTIONS.
3. THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT
THE FOURTH TERM OF MORALES WAS INTERRUPTED WHEN HE
"RELINQUISHED" HIS POSITION FOR ONE MONTH AND 14 DAYS PRIOR TO
THE MAY 14, 2007 ELECTION.4
The petition has no merit.
The present case covers a situation wherein we have previously ruled that Morales had
been elected to the same office and had served three consecutive terms, and wherein we
disqualified and removed Morales during his fourth term. Dizon claims that Morales is
currently serving his fifth term as mayor. Is the 2007-2010 term really Morales’ fifth term?
The Effect of our Ruling in the Rivera Case
In our decision promulgated on 9 May 2007, this Court unseated Morales during his fourth
term. We cancelled his Certificate of Candidacy dated 30 December 2003. This cancellation
disqualified Morales from being a candidate in the May 2004 elections. The votes cast for
Morales were considered stray votes. The dispositive portion in the Rivera case reads:
WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales’
Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in
the Office of the Mayor of Mabalacat, Pampanga, the vice-mayor elect of the said
municipality in the May 10, 2004 Synchronized National and Local Elections is hereby
declared mayor and shall serve as such for the remaining duration of the term July 1, 2004
to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot.
SO ORDERED.5
Article X, Section 8 of the 1987 Constitution reads:
was elected.
Section 43(b) of the Local Government Code restated Article X, Section 8 of the 1987
Constitution as follows:
No local elective official shall serve for more than three (3) consecutive terms in the same
as an interruption in the continuity of service for the full term for which the elective official
concerned was elected.
For purposes of determining the resulting disqualification brought about by the three-term
limit, it is not enough that an individual has served three consecutive terms in an elective
local office, he must also have been elected to the same position for the same number of
times.6 There should be a concurrence of two conditions for the application of the
disqualification: (1) that the official concerned has been elected for three consecutive terms
in the same local government post and (2) that he has fully served three consecutive
terms.7lavvphil.net
In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four
consecutive terms: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001
to 30 June 2004, and 1 July 2004 to 30 June 2007. We disqualified Morales from his
candidacy in the May 2004 elections because of the three-term limit. Although the trial court
previously ruled that Morales’ proclamation for the 1998-2001 term was void, there was no
interruption of the continuity of Morales’ service with respect to the 1998-2001 term because
the trial court’s ruling was promulgated only on 4 July 2001, or after the expiry of the 1998-
2001 term.
Our ruling in the Rivera case served as Morales’ involuntary severance from office with
respect to the 2004-2007 term. Involuntary severance from office for any length of time
short of the full term provided by law amounts to an interruption of continuity of service. 8 Our
decision in the Rivera case was promulgated on 9 May 2007 and was effective
immediately. The next day, Morales notified the vice mayor’s office of our decision. The vice
mayor assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The
assumption by the vice mayor of the office of the mayor, no matter how short it may seem to
Dizon, interrupted Morales’ continuity of service. Thus, Morales did not hold office for the full
term of 1 July 2004 to 30 June 2007.
2007-2010: Morales’ Fifth Term?
Josef Elvin Campos
Dizon claims that the 2007-2010 term is Morales’ fifth term in office. Dizon asserts that even
after receipt of our decision on 10 May 2007, Morales "waited for the election to be held on
14 May 2007 to ensure his victory for a fifth term." 9
We concede that Morales occupied the position of mayor of Mabalacat for the following
periods: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June
2004, and 1 July 2004 to 16 May 2007. However, because of his disqualification, Morales
was not the duly elected mayor for the 2004-2007 term. Neither did Morales hold the
position of mayor of Mabalacat for the full term. Morales cannot be deemed to have served
the full term of 2004-2007 because he was ordered to vacate his post before the expiration
of the term. Morales’ occupancy of the position of mayor of Mabalacat from 1 July 2004 to
16 May 2007 cannot be counted as a term for purposes of computing the three-term limit.
Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the
three-term limit rule. Thus, the present 1 July 2007 to 30 June 2010 term is effectively
Morales’ first term for purposes of the three-term limit rule.
Dizon alleges that Morales "was able to serve his fourth term as mayor through lengthy
litigations. x x x In other words, he was violating the rule on three-term limit with impunity by
the sheer length of litigation and profit from it even more by raising the technicalities arising
therefrom."10 To this, we quote our ruling in Lonzanida v. COMELEC:
The respondents harp on the delay in resolving the election protest between petitioner and
his then opponent Alvez which took roughly about three years and resultantly extended the
petitioner’s incumbency in an office to which he was not lawfully elected. We note that such
delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the
delay was due to any political maneuvering on his part to prolong his stay in office.
Moreover, protestant Alvez, was not without legal recourse to move for the early resolution
of the election protest while it was pending before the regional trial court or to file a motion
for the execution of the regional trial court’s decision declaring the position of mayor vacant
and ordering the vice-mayor to assume office while the appeal was pending with the
COMELEC. Such delay which is not here shown to have been intentionally sought by the
petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected
and to serve his chosen local government post in the succeeding mayoral election. 11
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution of the Commission on
Elections En Banc dated 14 February 2008 as well as the Resolution of the Commission on
Elections’ Second Division dated 27 July 2007.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
Bolos, Jr. v. Comelec (G.R. No. 184082, 17 March 2009)

G.R. No. 184082 March 17, 2009
NICASIO BOLOS, JR., Petitioner,
vs.
THE COMMISSION ON ELECTIONS and REY ANGELES CINCONIEGUE, Respondents.
DECISION
PERALTA, J.:
This is a petition for certiorari, under Rule 65 of the Rules of Court, alleging that the
Commission on Elections (COMELEC) committed grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the Resolutions promulgated on March 4, 2008 and
August 7, 2008 holding that petitioner Nicasio Bolos, Jr. is disqualified as a candidate for
the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29,
2007 Barangay and Sangguniang Kabataan Elections on the ground that he has served the
three-term limit provided in the Constitution and Republic Act (R.A.) No. 7160, otherwise
known as the Local Government Code of 1991.
For three consecutive terms, petitioner was elected to the position of Punong Barangay of
Barangay Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997 and 2002.
In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking,
petitioner ran for Municipal Councilor of Dauis, Bohol and won. He assumed office as
Municipal Councilor on July 1, 2004, leaving his post as Punong Barangay. He served the
full term of the Sangguniang Bayan position, which was until June 30, 2007.
Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of Barangay
Biking, Dauis, Bohol in the October 29, 2007 Barangay and Sangguniang
Kabataan Elections.
Josef Elvin Campos
Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate for
the same office, filed before the COMELEC a petition for the disqualification of petitioner as
candidate on the ground that he had already served the three-term limit. Hence, petitioner is
no longer allowed to run for the same position in accordance with Section 8, Article X of the
Constitution and Section 43 (b) of R.A. No. 7160.
Cinconiegue contended that petitioner’s relinquishment of the position of Punong
Barangay in July 2004 was voluntary on his part, as it could be presumed that it was his
personal decision to run as municipal councilor in the May 14, 2004 National and Local
Elections. He added that petitioner knew that if he won and assumed the position, there
would be a voluntary renunciation of his post as Punong Barangay.
In his Answer, petitioner admitted that he was elected as Punong Barangay of Barangay
Biking, Dauis, Bohol in the last three consecutive elections of 1994, 1997 and 2002.
However, he countered that in the May 14, 2004 National and Local Elections, he ran and
won as Municipal Councilor of Dauis, Bohol. By reason of his assumption of office
as Sangguniang Bayan member, his remaining term of office as Punong Barangay, which
would have ended in 2007, was left unserved. He argued that his election and assumption
of office as Sangguniang Bayan member was by operation of law; hence, it must be
considered as an involuntary interruption in the continuity of his last term of service.
Pursuant to Section 10 of COMELEC Resolution No. 8297 dated September 6, 2007, the
petition was heard by the Provincial Election Supervisor of Bohol. Upon completion of the
proceedings, the evidence, records of the case, and the Hearing Officer’s action on the
matter were endorsed to and received by the Commission on November 21, 2007.
The issue before the COMELEC was whether or not petitioner’s election, assumption and
discharge of the functions of the Office of Sangguniang Bayan member can be considered
as voluntary renunciation of his office as Punong Barangay of Barangay Biking, Dauis,
Bohol which will render unbroken the continuity of his service as Punong Barangay for the
full term of office, that is, from 2004 to 2007. If it is considered a voluntary renunciation,
petitioner will be deemed to have served three consecutive terms and shall be disqualified
to run for the same position in the October 29, 2007 elections. But if it is considered as an
involuntary
renunciation, petitioner’s service is deemed to have been interrupted; hence, he is not
barred from running for another term.
In a Resolution1 dated March 4, 2008, the First Division of the COMELEC ruled that
petitioner’s relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a
consequence of his assumption of office as Sangguniang Bayan member of Dauis, Bohol,
on July 1, 2004, was a voluntary renunciation of the Office of Punong Barangay. The
dispositive portion of the Resolution reads:
WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the
petition. Respondent NICASIO BOLOS, JR., having already served as Punong Barangay of
Barangay Biking, Dauis, Bohol for three consecutive terms is hereby DISQUALIFIED from
being a candidate for the same office in the October 29, 2007 Barangay and SK Elections.
Considering that respondent had already been proclaimed, said proclamation is hereby
ANNULLED. Succession to said office shall be governed by the provisions of Section 44 of
the Local Government Code.2
Petitioner’s motion for reconsideration was denied by the COMELEC en banc in a
Resolution3 dated August 7, 2008.
Hence, this petition for certiorari raising this lone issue:
WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS ACTED
WITHOUT OR IN EXCESS OF ITS JURISDICTION AMOUNTING TO LACK OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DISQUALIFYING
[PETITIONER] AS A CANDIDATE FOR PUNONG BARANGAY IN THE OCTOBER 29,
2007 BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS AND,
SUBSEQUENTLY, ANNULLING HIS PROCLAMATION.4
The main issue is whether or not there was voluntary renunciation of the Office of Punong
Barangay by petitioner when he assumed office as Municipal Councilor so that he is
deemed to have fully served his third term as Punong Barangay, warranting his
disqualification from running for the same position in the October 29,
2007 Barangay and Sangguniang Kabataan Elections.
Petitioner contends that he is qualified to run for the position of Punong Barangay in the
October 29, 2007 Barangay and Sangguniang Kabataan Elections since he did not serve
continuously three consecutive terms. He admits that in the 1994, 1997 and
2002 Barangay elections, he was elected as Punong Barangay for three consecutive terms.
Nonetheless, while serving his third term as Punong Barangay, he ran as Municipal
Josef Elvin Campos
Councilor of Dauis, Bohol, and won. On July 1, 2004, he assumed office and, consequently,
left his post as Punong Barangay by operation of law. He averred that he served the full
term as member of the Sangguniang Bayan until June 30, 2007. On October 29, 2007, he
filed his Certificate of Candidacy for Punong Barangay and won. Hence, the COMELEC
gravely abused its discretion in disqualifying him as a candidate for Punong Barangay since
he did not complete his third term by operation of law.
The argument does not persuade.
The three-term limit for elective local officials is contained in Section 8, Article X of the
determined by law, shall be three years, and no such official shall serve for more than three
was elected.
David v. Commission on Elections 5 elucidates that the Constitution did not expressly
prohibit Congress from fixing any term of office for barangay officials, thereby leaving to the
lawmakers full discretion to fix such term in accordance with the exigencies of public
service. The discussions in the Constitutional Commission showed that the term of office
of barangay officials would be "[a]s may be determined by law," and more precisely, "[a]s
provided for in the Local Government Code." 6 Section 43(b) of the Local Government Code
provides that barangay officials are covered by the three-term limit, while Section
43(c)7 thereof states that the term of office of barangay officials shall be five (5) years. The
cited provisions read, thus:
Sec. 43. Term of Office. – x x x
the elective official concerned was elected.
(c) The term of barangay officials and members of the sangguniang kabataan shall
be for five (5) years, which shall begin after the regular election of barangay officials
on the second Monday of May 1997: Provided, That the sangguniang kabataan
members who were elected in the May 1996 elections shall serve until the next
regular election of barangay officials.
Socrates v. Commission on Elections 8 held that the rule on the three-term limit, embodied in
the Constitution and the Local Government Code, has two parts:
x x x The first part provides that an elective local official cannot serve for more than three
consecutive terms. The clear intent is that only consecutive terms count in determining the
three-term limit rule. The second part states that voluntary renunciation of office for any
length of time does not interrupt the continuity of service. The clear intent is that involuntary
severance from office for any length of time interrupts continuity of service and prevents the
service before and after the interruption from being joined together to form a continuous
service or consecutive terms.
following the end of the third consecutive term. 9
In Lonzanida v. Commission on Elections, 10 the Court stated that the second part of the rule
on the three-term limit shows the clear intent of the framers of the Constitution to bar any
attempt to circumvent the three-term limit by a voluntary renunciation of office and at the
same time respect the people’s choice and grant their elected official full service of a term.
The Court held that two conditions for the application of the disqualification must concur: (1)
that the official concerned has been elected for three consecutive terms in the same
government post; and (2) that he has fully served three consecutive terms. 11
In this case, it is undisputed that petitioner was elected as Punong Barangay for three
consecutive terms, satisfying the first condition for disqualification.
What is to be determined is whether petitioner is deemed to have voluntarily renounced his
position as Punong Barangay during his third term when he ran for and won
as Sangguniang Bayan member and assumed said office.
The Court agrees with the COMELEC that there was voluntary renunciation by petitioner of
his position as Punong Barangay.
The COMELEC correctly held:
It is our finding that Nicasio Bolos, Jr.’s relinquishment of the office of Punong Barangay of
Biking, Dauis, Bohol, as a consequence of his assumption to office as Sangguniang Bayan
member of Dauis, Bohol, on July 1, 2004, is a voluntary renunciation.
Josef Elvin Campos
As conceded even by him, respondent (petitioner herein) had already completed two
consecutive terms of office when he ran for a third term in the Barangay Elections of 2002.
When he filed his certificate of candidacy for the Office of Sangguniang Bayan of Dauis,
Bohol, in the May 10, 2004 [elections], he was not deemed resigned. Nonetheless, all the
acts attending his pursuit of his election as municipal councilor point out to an intent and
readiness to give up his post as Punong Barangay once elected to the higher elective office,
for it was very unlikely that respondent had filed his Certificate of Candidacy for the
Sangguniang Bayan post, campaigned and exhorted the municipal electorate to vote for
him as such and then after being elected and proclaimed, return to his former position. He
knew that his election as municipal councilor would entail abandonment of the position he
held, and he intended to forego of it. Abandonment, like resignation, is voluntary. 12
Indeed, petitioner was serving his third term as Punong Barangay when he ran
for Sangguniang Bayan member and, upon winning, assumed the position of Sangguniang
Bayan member, thus, voluntarily relinquishing his office as Punong Barangay which the
Court deems as a voluntary renunciation of said office.
Petitioner erroneously argues that when he assumed the position of Sangguniang
Bayan member, he left his post as Punong Barangay by
operation of law; hence, he did not fully serve his third term as Punong Barangay.
The term "operation of law" is defined by the Philippine Legal Encyclopedia 13 as "a term
describing the fact that rights may be acquired or lost by the effect of a legal rule without
any act of the person affected." Black's Law Dictionary also defines it as a term that
"expresses the manner in which rights, and sometimes liabilities, devolve upon a person by
the mere application to the particular transaction of the established rules of law, without the
act or cooperation of the party himself." 14
An interruption in the service of a term of office, by operation of law, is exemplified in
Montebon v. Commission on Elections.15 The respondent therein, Sesinando F. Potencioso,
Jr., was elected and served three consecutive terms as Municipal Councilor of Tuburan,
Cebu in 1998-2001, 2001-2004, and 2004-2007. However, during his second term, he
succeeded as Vice-Mayor of Tuburan due to the retirement of the Vice-Mayor pursuant to
Section 44 of R.A. No. 7160.16 Potencioso’s assumption of office as Vice-Mayor was
considered an involuntary severance from his office as Municipal Councilor, resulting in an
interruption in his second term of service. 17 The Court held that it could not be deemed to
have been by reason of voluntary renunciation because it was by operation of law. 18 Hence,
Potencioso was qualified to run as candidate for municipal councilor of the Municipality of
Tuburan, Cebu in the May 14, 2007 Synchronized National and Local Elections.
Further, in Borja, Jr. v. Commission on Elections, 19 respondent therein, Jose T. Capco, Jr.,
was elected as Vice-Mayor of Pateros on January 18, 1988 for a term ending on June 30,
1992. On September 2, 1989, Capco became Mayor, by operation of law, upon the death of
the incumbent, Cesar Borja. Thereafter, Capco was elected and served as Mayor for two
more terms, from 1992 to 1998. On March 27, 1998, Capco filed a Certificate of Candidacy
for Mayor of Pateros in the May 11, 1998 election. Capco’s disqualification was sought on
the ground that he would have already served as Mayor for three consecutive terms by
June 30, 1998; hence, he would be ineligible to serve for another term. The Court declared
that the term limit for elective local officials must be taken to refer to the right to be elected
as well as the right to serve the same elective position. 20 The Court held that Capco was
qualified to run again as mayor in the next election because he was not elected to the office
of mayor in the first term but simply found himself thrust into it by operation of law. 21 Neither
had he served the full term because he only continued the service, interrupted by the death,
of the deceased mayor.22 The vice-mayor’s assumption of the mayorship in the event of the
vacancy is more a matter of chance than of design. 23 Hence, his service in that office should
not be counted in the application of any term limit. 24
In this case, petitioner did not fill in or succeed to a vacancy by operation of law. He instead
relinquished his office as Punong Barangay during his third term when he won and
assumed office as Sangguniang Bayan member of Dauis, Bohol, which is deemed a
voluntary renunciation of the Office of Punong Barangay.
In fine, the COMELEC did not commit grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the Resolutions dated March 4, 2008 and August 7, 2008,
disqualifying petitioner from being a candidate for Punong Barangay in the October 29,
2007 Barangay and Sangguniang Kabataan Elections.
WHEREFORE, the petition is DISMISSED. The COMELEC Resolutions dated March 4,
2008 and August 7, 2008 are hereby AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Josef Elvin Campos
DIOSDADO M. PERALTA
Associate Justice
Comelec v. Cruz (G.R. No. 186616, 20 November 2009)

G.R. No. 186616 November 20, 2009
COMMISSION ON ELECTIONS, Petitioner,
vs.
CONRADO CRUZ, SANTIAGO P. GO, RENATO F. BORBON, LEVVINO CHING,
CARLOS C. FLORENTINO, RUBEN G. BALLEGA, LOIDA ALCEDO, MARIO M.
CAJUCOM, EMMANUEL M. CALMA, MANUEL A. RAYOS, WILMA L. CHUA, EUFEMIO
S. ALFONSO, JESUS M. LACANILAO, BONIFACIO N. ALCAPA, JOSE H. SILVERIO,
RODRIGO DEVELLES, NIDA R. PAUNAN, MARIANO B. ESTUYE, JR., RAFAEL C.
AREVALO, ARTURO T. MANABAT, RICARDO O. LIZARONDO, LETICIA C. MATURAN,
RODRIGO A. ALAYAN, LEONILO N. MIRANDA, DESEDERIO O. MONREAL,
FRANCISCO M. BAHIA, NESTOR R. FORONDA, VICENTE B. QUE, JR., AURELIO A.
BILUAN, DANILO R. GATCHALIAN, LOURDES R. DEL MUNDO, EMMA O. CALZADO,
FELIMON DE LEON, TANY V. CATACUTAN, AND CONCEPCION P. JAO, Respondents.
DECISION
BRION, J.:
We resolve in this Decision the constitutional challenge, originally filed before the Regional
Trial Court of Caloocan City, Branch 128 (RTC), against the following highlighted portion of
Section 2 of Republic Act (RA) No. 9164 (entitled "An Act Providing for Synchronized
Barangay and Sangguniang Kabataan Elections, amending RA No. 7160, as amended,
otherwise known as the Local Government Code of 1991"):
Sec. 2. Term of Office. – The term of office of
all barangay and sangguniang kabataan officials after the effectivity of this Act shall be
three (3) years.
No barangay elective official shall serve for more than three (3) consecutive terms in the
same position: Provided, however, That the term of office shall be reckoned from the
1994 barangay elections. Voluntary renunciation of office for any length of time shall not be
elective official was elected.
The RTC granted the petition and declared the challenged proviso constitutionally infirm.
The present petition, filed by the Commission on Elections (COMELEC), seeks a review of
the RTC decision.1
THE ANTECEDENTS
Before the October 29, 2007 Synchronized Barangay and Sangguniang Kabataan (SK)
Elections, some of the then incumbent officials of several barangays of Caloocan City2 filed
with the RTC a petition for declaratory relief to challenge the constitutionality of the above-
highlighted proviso, based on the following arguments:
I. The term limit of Barangay officials should be applied prospectively and not
retroactively.
II. Implementation of paragraph 2 Section 2 of RA No. 9164 would be a violation of
the equal protection of the law.
III. Barangay officials have always been apolitical.
The RTC agreed with the respondents’ contention that the challenged proviso retroactively
applied the three-term limit for barangay officials under the following reasoning:
When the Local Government Code of 1991 took effect abrogating all other laws inconsistent
therewith, a different term was ordained. Here, this Court agrees with the position of the
petitioners that Section 43 of the Code specifically exempted barangay elective officials
from the coverage of the three (3) consecutive term limit rule considering that the provision
applicable to these (sic) class of elective officials was significantly separated from the
provisions of paragraphs (a) and (b) thereof. Paragraph (b) is indeed intended to qualify
paragraph (a) of Section 43 as regards to (sic) all local elective officials
except barangay officials. Had the intention of the framers of the Code is (sic) to
include barangay elective officials, then no excepting proviso should have been expressly
made in paragraph (a) thereof or, by implication, the contents of paragraph (c) should have
been stated ahead of the contents of paragraph (b).
xxxx
Clearly, the intent of the framers of the constitution (sic) is to exempt the barangay officials
from the three (3) term limits (sic) which are otherwise applicable to other elected public
officials from the Members of the House of Representatives down to the members of
Josef Elvin Campos
the sangguniang bayan/panlungsod. It is up for the Congress whether the three (3) term
limit should be applied by enacting a law for the purpose.
The amendment introduced by R.A. No. 8524 merely increased the term of office
of barangay elective officials from three (3) years to five (5) years. Like the Local
Government Code, it can be noted that no consecutive term limit for the election
of barangay elective officials was fixed therein.
The advent of R.A. 9164 marked the revival of the consecutive term limit for the election
of barangay elective officials after the Local Government Code took effect. Under the
assailed provision of this Act, the term of office of barangay elective officials reverted back
to three (3) years from five (5) years, and, this time, the legislators expressly declared that
no barangay elective official shall serve for more than three (3) consecutive terms in the
same position. The petitioners are very clear that they are not assailing the validity of such
provision fixing the three (3) consecutive term limit rule for the election of barangay elective
officials to the same position. The particular provision the constitutionality of which is under
attack is that portion providing for the reckoning of the three (3) consecutive term limit
of barangay elective officials beginning from the 1994 barangay elections.
xxx
Section 2, paragraph 2 of R.A. 9164 is not a mere restatement of Section 43(c) of the Local
Government Code. As discussed above, Section 43(c) of the Local Government Code does
not provide for the consecutive term limit rule of barangay elective officials. Such specific
provision of the Code has in fact amended the previous enactments (R.A. 6653 and R.A.
6679) providing for the consecutive term limit rule of barangay elective officials. But, such
specific provision of the Local Government Code was amended by R.A. 9164, which
reverted back to the previous policy of fixing consecutive term limits of barangay elective
officials." 3
In declaring this retroactive application unconstitutional, the RTC explained that:
By giving a retroactive reckoning of the three (3) consecutive term limit rule
for barangay officials to the 1994 barangay elections, Congress has violated not only the
principle of prospective application of statutes but also the equal protection clause of the
Constitution inasmuch as the barangay elective officials were singled out that their
consecutive term limit shall be counted retroactively. There is no rhyme or reason why the
consecutive limit for these barangay officials shall be counted retroactively while the
consecutive limit for other local and national elective officials are counted prospectively. For
if the purpose of Congress is [sic] to classify elective barangay officials as belonging to the
same class of public officers whose term of office are limited to three (3) consecutive terms,
then to discriminate them by applying the proviso retroactively violates the constitutionally
enshrined principle of equal protection of the laws.
Although the Constitution grants Congress the power to determine such successive term
limit of barangay elective officials, the exercise of the authority granted shall not otherwise
transgress other constitutional and statutory privileges.
This Court cannot subscribe to the position of the respondent that the legislature clearly
intended that the provision of RA No. 9164 be made effective in 1994 and that such
provision is valid and constitutional. If we allow such premise, then the term of office for
those officials elected in the 1997 barangay elections should have ended in year 2000 and
not year 2002 considering that RA No. 9164 provides for a three-year term
of barangay elective officials. The amendment introduced by R.A. No. 8524 would be
rendered nugatory in view of such retroactive application. This is absurd and illusory.
True, no person has a vested right to a public office, the same not being property within the
contemplation of constitutional guarantee. However, a cursory reading of the petition would
show that the petitioners are not claiming vested right to their office but their right to be
voted upon by the electorate without being burdened by the assailed provision of the law
that, in effect, rendered them ineligible to run for their incumbent positions. Such right to run
for office and be voted for by the electorate is the right being sought to be protected by
assailing the otherwise unconstitutional provision.
Moreover, the Court likewise agrees with the petitioners that the law violated the one-act-
one subject rule embodied in the Constitution. x x x x The challenged law’s title is "AN ACT
PROVIDING FOR THE
SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS,
AMENDING REPUBLIC ACT 7160 OTHERWISE KNOWN AS THE LOCAL
GOVERNMENT CODE OF 1991 AND FOR OTHER PURPOSES." x x x x
xxxx
To this court, the non-inclusion in the title of the act on the retroactivity of the reckoning of
the term limits posed a serious constitutional breach, particularly on the provision of the
Josef Elvin Campos
constitution [sic] that every bill must embrace only one subject to be expressed in the title
thereof.
x x x the Court is of the view that the affected barangay officials were not sufficiently given
notice that they were already disqualified by a new act, when under the previous
enactments no such restrictions were imposed.
Even if this Court would apply the usual test in determining the sufficiency of the title of the
bill, the challenged law would still be insufficient for how can a retroactivity of the term limits
be germane to the synchronization of an election x x x x. 4
The COMELEC moved to reconsider this decision but the RTC denied the motion. Hence,
the present petition on a pure question of law.
The Petition
The COMELEC takes the position that the assailed law is valid and constitutional. RA No.
9164 is an amendatory law to RA No. 7160 (the Local Government Code of 1991 or LGC)
and is not a penal law; hence, it cannot be considered an ex post facto law. The three-term
limit, according to the COMELEC, has been specifically provided in RA No. 7160, and RA
No. 9164 merely restated the three-term limitation. It further asserts that laws which are not
penal in character may be applied retroactively when expressly so provided and when it
does not impair vested rights. As there is no vested right to public office, much less to an
elective post, there can be no valid objection to the alleged retroactive application of RA No.
9164.
The COMELEC also argues that the RTC’s invalidation of RA No. 9164 essentially involves
the wisdom of the law – the aspect of the law that the RTC has no right to inquire into under
the constitutional separation of powers principle. The COMELEC lastly argues that there is
no violation of the one subject-one title rule, as the matters covered by RA No. 9164 are
related; the assailed provision is actually embraced within the title of the law.
THE COURT’S RULING
We find the petition meritorious. The RTC legally erred when it declared the challenged
proviso unconstitutional.
Preliminary Considerations
We find it appropriate, as a preliminary matter, to hark back to the pre-1987 Constitution
history of the barangay political system as outlined by this Court in David v.
COMELEC,5 and we quote:
As a unit of government, the barangay antedated the Spanish conquest of the Philippines.
The word "barangay" is derived from the Malay "balangay," a boat which transported them
(the Malays) to these shores. Quoting from Juan de Plasencia, a Franciscan missionary in
1577, Historian Conrado Benitez wrote that the barangay was ruled by a dato who
exercised absolute powers of government. While the Spaniards kept the barangay as the
basic structure of government, they stripped the dato or rajah of his powers. Instead, power
was centralized nationally in the governor general and locally in the encomiendero and
later, in the alcalde mayor and the gobernadorcillo. The dato or rajah was much later
renamed cabeza de barangay, who was elected by the local citizens possessing property.
The position degenerated from a title of honor to that of a "mere government employee.
Only the poor who needed a salary, no matter how low, accepted the post."
After the Americans colonized the Philippines, the barangays became known as "barrios."
For some time, the laws governing barrio governments were found in the Revised
Administrative Code of 1916 and later in the Revised Administrative Code of 1917. Barrios
were granted autonomy by the original Barrio Charter, RA 2370, and formally recognized as
quasi-municipal corporations by the Revised Barrio Charter, RA 3590. During the martial
law regime, barrios were "declared" or renamed "barangays" -- a reversion really to their
pre-Spanish names -- by PD. No. 86 and PD No. 557. Their basic organization and
functions under RA 3590, which was expressly "adopted as the Barangay Charter," were
retained. However, the titles of the officials were changed to "barangay captain,"
"barangay councilman," "barangay secretary" and "barangay treasurer."
Pursuant to Sec. 6 of Batas Pambansa Blg. 222, "a Punong Barangay (Barangay Captain)
and six Kagawads ng Sangguniang Barangay (Barangay Councilmen), who shall constitute
the presiding officer and members of the Sangguniang Barangay (Barangay Council)
respectively" were first elected on May 17, 1982. They had a term of six years which began
on June 7, 1982.
The Local Government Code of 1983 also fixed the term of office of local elective officials at
six years. Under this Code, the chief officials of the barangay were the punong barangay,
six elective sangguniang barangay members, the kabataang barangay chairman,
a barangay secretary and a barangay treasurer.
Josef Elvin Campos
B.P. Blg. 881, the Omnibus Election Code, reiterated that barangay officials "shall hold
office for six years," and stated that their election was to be held "on the second Monday of
May nineteen hundred and eighty eight and on the same day every six years thereafter."
[Emphasis supplied.]
The 1987 Philippine Constitution extended constitutional recognition to barangays under
Article X, Section 1 by specifying barangays as one of the territorial and political
subdivisions of the country, supplemented by Section 8 of the same Article X, which
provides:
SEC. 8. The term of office of elective local officials, except barangay officials, which shall be
was elected. [Emphasis supplied.]
The Constitutional Commission’s deliberations on Section 8 show that the authority of
Congress to legislate relates not only to the fixing of the term of office of barangay officials,
but also to the application of the three-term limit. The following deliberations of the
Constitutional Commission are particularly instructive on this point:
MR. NOLLEDO: One clarificatory question, Madam President. What will be the term
of the office of barangay officials as provided for?
MR. DAVIDE: As may be determined by law.
MR. NOLLEDO: As provided for in the Local Government Code?
MR. DAVIDE: Yes.
x x x x x x x x x
THE PRESIDENT: Is there any other comment? Is there any objection to this
proposed new section as submitted by Commissioner Davide and accepted by the
Committee?
MR. RODRIGO: Madam President, does this prohibition to serve for more than three
consecutive terms apply to barangay officials?
MR. DAVIDE: Madam President, the voting that we had on the terms of office did not
include the barangay officials because it was then the stand of the Chairman of the
Committee on Local Governments that the term of barangay officials must be
determined by law. So it is now for the law to determine whether the restriction on
the number of reelections will be included in the Local Government Code.
MR. RODRIGO: So that is up to Congress to decide.
MR. DAVIDE: Yes.
MR. RODRIGO: I just wanted that clear in the record." 6 [Emphasis supplied.]
After the effectivity of the 1987 Constitution, the barangay election originally scheduled
by Batas Pambansa Blg. 8817 on the second Monday of May 1988 was reset to "the second
Monday of November 1988 and every five years thereafter by RA No. 6653." 8 Section 2 of
RA No. 6653 changed the term of office of barangay officials and introduced a term
limitation as follows:
SEC. 2. The term of office of barangay officials shall be for five (5) years from the first day
of January following their election. Provided, however, That no kagawad shall serve for
more than two (2) consecutive terms. [Emphasis supplied]
Under Section 5 of RA No. 6653, the punong barangay was to be chosen by
seven kagawads from among themselves, and they in turn, were to be elected at large by
the barangay electorate. The punong barangay, under Section 6 of the law, may be recalled
for loss of confidence by an absolute majority vote of the Sangguniang
Barangay, embodied in a resolution that shall necessarily include
the punong barangay’s successor.
The election date set by RA No. 6653 on the second Monday of November 1988 was
postponed yet again to March 28, 1989 by RA No. 6679 whose pertinent provision states:
SEC. 1. The elections of barangay officials set on the second Monday of November 1988 by
Republic Act No. 6653 are hereby postponed and reset to March 28, 1989. They shall serve
a term which shall begin on the first day of May 1989 and ending on the thirty-first day of
May 1994.
There shall be held a regular election of barangay officials on the second Monday of May
1994 and on the same day every five (5) years thereafter. Their term shall be for five (5)
years which shall begin on the first day of June following the election and until their
successors shall have been elected and qualified: Provided, That no barangay official shall
serve for more than three (3) consecutive terms.
The barangay elections shall be nonpartisan and shall be conducted in an expeditious and
inexpensive manner.
Josef Elvin Campos
Significantly, the manner of election of the punong barangay was changed –
Section 5 of the law provided that while the seven kagawads were to be elected by the
registered voters of the barangay, "(t)he candidate who obtains the highest number of votes
shall be the punong barangay and in the event of a tie, there shall be a drawing of lots
under the supervision of the Commission on Elections."
More than two (2) years after the 1989 barangay elections, RA No. 7160 (the LGC)
introduced the following changes in the law:
SEC. 41. Manner of Election. -- (a) The x x x punong barangay shall be elected at large x x
x by the qualified voters" therein.
SEC. 43. Term of Office. - (a) The term of office of all local elective officials elected after the
effectivity of this Code shall be three (3) years, starting from noon of June 30, 1992 or such
date as may be provided for by law, except that of elective barangay officials: Provided,
That all local officials first elected during the local elections immediately following the
ratification of the 1987 Constitution shall serve until noon of June 30, 1992.
the elective official concerned was elected.
(c) The term of office of barangay officials and members of
the sangguniang kabataan shall be for three (3) years, which shall begin after the
regular election of barangay officials on the second Monday of May 1994.
SEC. 387. Chief Officials and Offices. -- (a) There shall be in each barangay a punong
barangay, seven (7) sangguniang barangay members, the sangguniang
kabataan chairman, a barangay secretary and a barangay treasurer.
xxxxxxxxx
SEC. 390. Composition. -- The Sangguniang barangay, the legislative body of
the barangay, shall be composed of the punong barangay as presiding officer, and the
seven (7) regular sanguniang barangay members elected at large and the sanguniang
kabataan chairman as members. [Emphasis supplied.]
This law started the direct and separate election of the punong barangay by the "qualified
voters" in the barangay and not by the seven (7) kagawads from among themselves.9
Subsequently or on February 14, 1998, RA No. 8524 changed the three-year term of office
of barangay officials under Section 43 of the LGC to five (5) years. On March 19, 2002, RA
No. 9164 introduced the following significant changes: (1) the term of office
of barangay officials was again fixed at three years on the reasoning that
the barangay officials should not serve a longer term than their supervisors; 10 and (2) the
challenged proviso, which states that the 1994 election shall be the reckoning point for the
application of the three-term limit, was introduced. Yet another change was introduced three
years after or on July 25, 2005 when RA No. 9340 extended the term of the then
incumbent barangay officials – due to expire at noon of November 30, 2005 under RA No.
9164 – to noon of November 30, 2007. The three-year term limitation provision survived all
these changes.
Congress’ Plenary Power to Legislate Term Limits for Barangay Officials and Judicial Power
In passing upon the issues posed to us, we clarify at the outset the parameters of our
powers.
As reflected in the above-quoted deliberations of the 1987 Constitution, Congress has
plenary authority under the Constitution to determine by legislation not only the duration of
the term of barangay officials, but also the application to them of a consecutive term limit.
Congress invariably exercised this authority when it enacted no less than six (6) barangay-
related laws since 1987.
Through all these statutory changes, Congress had determined at its discretion both the
length of the term of office of barangay officials and their term limitation. Given the textually
demonstrable commitment by the 1987 Constitution to Congress of the authority to
determine the term duration and limition of barangay officials under the Constitution, we
consider it established that whatever Congress, in its wisdom, decides on these matters are
political questions beyond the pale of judicial scrutiny, 11 subject only to the certiorari
jurisdiction of the courts provided under Section 1, Article VIII of the Constitution and to the
judicial authority to invalidate any law contrary to the Constitution. 12
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 the
government; it is concerned with issues dependent upon the wisdom, not legality of a
particular measure."13 These questions, previously impervious to judicial scrutiny can now
Josef Elvin Campos
be inquired into under the limited window provided by Section 1, Article VIII. Estrada v.
Desierto14 best describes this constitutional development, and we quote:
To a great degree, the 1987 Constitution has narrowed the reach of the political doctrine
when it expanded the power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable and enforceable but also
to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of government.
Heretofore, the judiciary has focused on the "thou shalt not’s" of the Constitution directed
against the exercise of its jurisdiction. With the new provision, however, courts are given a
greater prerogative to determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing.
In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming
the so called political thicket. xxxx
Thus, we can inquire into a congressional enactment despite the political question doctrine,
although the window provided us is narrow; the challenge must show grave abuse of
discretion to justify our intervention.
Other than the Section 1, Article VIII route, courts can declare a law invalid when it is
contrary to any provision of the Constitution. This requires the appraisal of the challenged
law against the legal standards provided by the Constitution, not on the basis of the wisdom
of the enactment. To justify its nullification, the breach of the Constitution must be clear and
unequivocal, not a doubtful or equivocal one, as every law enjoys a strong presumption of
constitutionality.15 These are the hurdles that those challenging the constitutional validity of
a law must overcome.
The present case, as framed by the respondents, poses no challenge on the issue of grave
abuse of discretion. The legal issues posed relate strictly to compliance with constitutional
standards. It is from this prism that we shall therefore resolve this case.
The Retroactive Application Issue
a. Interpretative / Historical Consideration
The respondents’ first objection to the challenged proviso’s constitutionality is its purported
retroactive application of the three-term limit when it set the 1994 barangay elections as a
reckoning point in the application of the three-term limit.
The respondents argued that the term limit, although present in the previous laws, was not
in RA No. 7160 when it amended all previous barangay election laws. Hence, it was re-
introduced for the first time by RA No. 9164 (signed into law on March 19, 2002) and was
applied retroactively when it made the term limitation effective from the
1994 barangay elections. As the appealed ruling quoted above shows, the RTC fully agreed
with the respondents’ position.
Our first point of disagreement with the respondents and with the RTC is on their position
that a retroactive application of the term limitation was made under RA No. 9164. Our own
reading shows that no retroactive application was made because the three-term limit has
been there all along as early as the second barangay law (RA No. 6679) after the 1987
Constitution took effect; it was continued under the LGC and can still be found in the current
law. We find this obvious from a reading of the historical development of the law.
The first law that provided a term limitation for barangay officials was RA No. 6653 (1988); it
imposed a two-consecutive term limit. After only six months, Congress, under RA No. 6679
(1988), changed the two-term limit by providing for a three-consecutive term limit. This
consistent imposition of the term limit gives no hint of any equivocation in the congressional
intent to provide a term limitation. Thereafter, RA No. 7160 – the LGC – followed, bringing
with it the issue of whether it provided, as originally worded, for a three-term limit
for barangay officials. We differ with the RTC analysis of this issue.
Section 43 is a provision under Title II of the LGC on Elective Officials. Title II is divided into
several chapters dealing with a wide range of subject matters, all relating to local elective
officials, as follows: a. Qualifications and Election (Chapter I); b. Vacancies and Succession
(Chapter II), c. Disciplinary Actions (Chapter IV) and d. Recall (Chapter V). Title II likewise
contains a chapter on Local Legislation (Chapter III).
These Title II provisions are intended to apply to all local elective officials, unless the
contrary is clearly provided. A contrary application is provided with respect to the length
of the term of office under Section 43(a); while it applies to all local elective officials, it does
not apply to barangay officials whose length of term is specifically provided by Section
43(c). In contrast to this clear case of an exception to a general rule, the three-term limit
under Section 43(b) does not contain any exception; it applies to all local elective officials
who must perforce include barangay officials.
Josef Elvin Campos
An alternative perspective is to view Sec. 43(a), (b) and (c) separately from one another as
independently standing and self-contained provisions, except to the extent that they
expressly relate to one another. Thus, Sec. 43(a) relates to the term of local elective
officials, except barangay officials whose term of office is separately provided under Sec.
43(c). Sec. 43(b), by its express terms, relates to all local elective officials without any
exception. Thus, the term limitation applies to all local elective officials without any
exclusion or qualification.
Either perspective, both of which speak of the same resulting interpretation, is the correct
legal import of Section 43 in the context in which it is found in Title II of the LGC.1avvphi1
To be sure, it may be argued, as the respondents and the RTC did, that paragraphs (a) and
(b) of Section 43 are the general law for elective officials (other than barangay officials); and
paragraph (c) is the specific law on barangay officials, such that the silence of paragraph (c)
on term limitation for barangay officials indicates the legislative intent to
exclude barangay officials from the application of the three-term limit. This reading,
however, is flawed for two reasons.
First, reading Section 43(a) and (b) together to the exclusion of Section 43(c), is not justified
by the plain texts of these provisions. Section 43(a) plainly refers to local elective officials,
except elective barangay officials. In comparison, Section 43(b) refers to all local elective
officials without exclusions or exceptions. Their respective coverages therefore vary so that
one cannot be said to be of the same kind as the other. Their separate topics additionally
strengthen their distinction; Section 43(a) refers to the term of office while Section 43(b)
refers to the three-term limit. These differences alone indicate that Sections 43(a) and (b)
cannot be read together as one organic whole in the way the RTC suggested. Significantly,
these same distinctions apply between Sec. 43(b) and (c).
Second, the RTC interpretation is flawed because of its total disregard of the historical
background of Section 43(c) – a backdrop that we painstakingly outlined above.
From a historical perspective of the law, the inclusion of Section 43(c) in the LGC is an
absolute necessity to clarify the length of term of barangay officials. Recall that under RA
No. 6679, the term of office of barangay officials was five (5) years. The real concern was
how Section 43 would interface with RA No. 6679. Without a categorical statement on the
length of the term of office of barangay officials, a general three-year term for all local
elective officials under Section 43(a), standing alone, may not readily and completely erase
doubts on the intended abrogation of the 5-year term for barangay officials under RA No.
6679. Thus, Congress added Section 43(c) which provided a categorical three-year term for
these officials. History tells us, of course, that the unequivocal provision of Section 43(c)
notwithstanding, an issue on what is the exact term of office of barangay officials was still
brought to us via a petition filed by no less than the President of the Liga ng Mga
Barangay in 1997. We fully resolved the issue in the cited David v. Comelec.
Section 43(c) should therefore be understood in this context and not in the sense that it
intended to provide the complete rule for the election of barangay officials, so that in the
absence of any term limitation proviso under this subsection, no term limitation applies
to barangay officials. That Congress had the LGC’s three-term limit in mind when it enacted
RA No. 9164 is clear from the following deliberations in the House of Representatives
(House) on House Bill No. 4456 which later became RA No. 9164:
MARCH 5, 2002:
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Majority Leader.
REP. ESCUDERO. Mr. Speaker, next to interpellate is the Gentleman from Zamboanga
City. I ask that the Honorable Lobregat be recognized.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). The Honorable Lobregat is recognized.
REP. LOBREGAT. Thank you very much, Mr. Speaker. Mr. Speaker, this is just …
REP. MACIAS. Willingly to the Gentleman from Zamboanga City.
REP. LOBREGAT. … points of clarification, Mr. Speaker, the term of office. It says in
Section 4, "The term of office of all Barangay and sangguniang kabataan officials after the
effectivity of this Act shall be three years." Then it says, "No Barangay elective official shall
serve for more than three (3) consecutive terms in the same position."
Mr. Speaker, I think it is the position of the committee that the first term should be reckoned
from election of what year, Mr. Speaker?
REP. MACIAS. After the adoption of the Local Government Code, Your Honor. So that the
first election is to be reckoned on, would be May 8, 1994, as far as the Barangay election is
concerned.
REP. LOBREGAT. Yes, Mr. Speaker. So there was an election in 1994.
REP. MACIAS. Then an election in 1997.
REP. LOBREGAT. There was an election in 1997. And there will be an election this year …
Josef Elvin Campos
REP. LOBREGAT. … election this year.
REP. MACIAS. That is correct. This will be the third.
x x x x x x x x x
REP. SUMULONG. Mr. Speaker.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.) The Honorable Sumulong is recognized.
REP. SUMULONG. Again, with the permission of my Chairman, I would like to address the
question of Congressman Lobregat.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Please proceed.
REP. SUMULONG. With respect to the three-year consecutive term limits of Barangay
Captains that is not provided for in the Constitution and that is why the election prior to 1991
during the enactment of the Local Government Code is not counted because it is not in the
Constitution but in the Local Government Code where the three consecutive term limits has
been placed. [Emphasis supplied.]
which led to the following exchanges in the House Committee on Amendments:
March 6, 2002
COMMITTEE ON AMENDMENTS
REP. GONZALES. May we now proceed to committee amendment, if any, Mr. Speaker.
THE DEPUTY SPEAKER (Rep. Gonzalez). The Chair recognizes the distinguished
Chairman of the Committee on Suffrage and Electoral Reforms.
REP. SYJUCO. Mr. Speaker, on page 2, line 7, after the word "position", substitute the
period (.) and add the following: PROVIDED HOWEVER THAT THE TERM OF OFFICE
SHALL BE RECKONED FROM THE 1994 BARANGAY ELECTIONS. So that the amended
Section 4 now reads as follows:
"SEC. 4. Term of Office. – The term of office of all barangay and sangguniang kabataan
officials after the effectivity of this Act shall be three (3) years.
No barangay elective local official shall serve for more than three (3) consecutive terms in
the same position COLON (:) PROVIDED, HOWEVER, THAT THE TERM OF OFFICE
SHALL BE RECKONED FROM THE 1994 BARANGAY ELECTIONS. Voluntary
continuity of service for the full term for which the elective official was elected.
The House therefore clearly operated on the premise that the LGC imposed a three-term
limit for barangay officials, and the challenged proviso is its way of addressing any
confusion that may arise from the numerous changes in the law.
All these inevitably lead to the conclusion that the challenged proviso has been there all
along and does not simply retroact the application of the three-term limit to
the barangay elections of 1994. Congress merely integrated the past statutory changes into
a seamless whole by coming up with the challenged proviso.
With this conclusion, the respondents’ constitutional challenge to the proviso – based on
retroactivity – must fail.
b. No Involvement of Any Constitutional Standard
Separately from the above reason, the constitutional challenge must fail for a more
fundamental reason – the respondents’ retroactivity objection does not involve a violation of
any constitutional standard.
Retroactivity of laws is a matter of civil law, not of a constitutional law, as its governing law
is the Civil Code,16 not the Constitution. Article 4 of the Civil Code provides that laws shall
have no retroactive effect unless the contrary is provided. The application of the Civil Code
is of course self-explanatory – laws enacted by Congress may permissibly provide that they
shall have retroactive effect. The Civil Code established a statutory norm, not a
constitutional standard.
The closest the issue of retroactivity of laws can get to a genuine constitutional issue is if a
law’s retroactive application will impair vested rights. Otherwise stated, if a right has already
vested in an individual and a subsequent law effectively takes it away, a genuine due
process issue may arise. What should be involved, however, is a vested right to life, liberty
or property, as these are the ones that may be considered protected by the due process
clause of the Constitution.1 a vv p h i 1
In the present case, the respondents never raised due process as an issue. But even
assuming that they did, the respondents themselves concede that there is no vested right to
public office.17 As the COMELEC correctly pointed out, too, there is no vested right to an
elective post in view of the uncertainty inherent in electoral exercises.
Aware of this legal reality, the respondents theorized instead that they had a right to be
voted upon by the electorate without being burdened by a law that effectively rendered them
ineligible to run for their incumbent positions. Again, the RTC agreed with this contention.
Josef Elvin Campos
We do not agree with the RTC, as we find no such right under the Constitution; if at all, this
claimed right is merely a restatement of a claim of vested right to a public office. What the
Constitution clearly provides is the power of Congress to prescribe the qualifications for
elective local posts;18 thus, the question of eligibility for an elective local post is a matter for
Congress, not for the courts, to decide. We dealt with a strikingly similar issue in
Montesclaros v. Commission on Elections 19 where we ruled that SK membership – which
was claimed as a property right within the meaning of the Constitution – is a mere statutory
right conferred by law. Montesclaros instructively tells us:
Congress exercises the power to prescribe the qualifications for SK membership. One who
is no longer qualified because of an amendment in the law cannot complain of being
deprived of a proprietary right to SK membership. Only those who qualify as SK members
can contest, based on a statutory right, any act disqualifying them from SK membership or
from voting in the SK elections. SK membership is not a property right protected by the
Constitution because it is a mere statutory right conferred by law. Congress may amend at
any time the law to change or even withdraw the statutory right.
A public office is not a property right. As the Constitution expressly states, a "[P]ublic office
is a public trust." No one has a vested right to any public office, much less a vested right to
an expectancy of holding a public office. In Cornejo v. Gabriel, decided in 1920, the Court
already ruled:
Again, for this petition to come under the due process of law prohibition, it would be
necessary to consider an office a "property." It is, however, well settled x x x that a
public office is not property within the sense of the constitutional guaranties of due
process of law, but is a public trust or agency. x x x The basic idea of the government x x x
is that of a popular representative government, the officers being mere agents and not
rulers of the people, one where no one man or set of men has a proprietary or contractual
right to an office, but where every officer accepts office pursuant to the provisions of the law
and holds the office as a trust for the people he represents.
Petitioners, who apparently desire to hold public office, should realize from the very start
that no one has a proprietary right to public office. While the law makes an SK officer an ex-
officio member of a local government legislative council, the law does not confer on
petitioners a proprietary right or even a proprietary expectancy to sit in local legislative
councils. The constitutional principle of a public office as a public trust precludes any
proprietary claim to public office. Even the State policy directing "equal access to
opportunities for public service" cannot bestow on petitioners a proprietary right to SK
membership or a proprietary expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youth’s involvement in public affairs,
this policy refers to those who belong to the class of people defined as the youth. Congress
has the power to define who are the youth qualified to join the SK, which itself is a creation
of Congress. Those who do not qualify because they are past the age group defined as the
youth cannot insist on being part of the youth. In government service, once an employee
reaches mandatory retirement age, he cannot invoke any property right to cling to his office.
In the same manner, since petitioners are now past the maximum age for membership in
the SK, they cannot invoke any property right to cling to their SK membership. [Emphasis
supplied.]
To recapitulate, we find no merit in the respondents’ retroactivity arguments because: (1)
the challenged proviso did not provide for the retroactive application to barangay officials of
the three-term limit; Section 43(b) of RA No. 9164 simply continued what had been there
before; and (2) the constitutional challenge based on retroactivity was not anchored on a
constitutional standard but on a mere statutory norm.
The Equal Protection Clause Issue
The equal protection guarantee under the Constitution is found under its Section 2, Article
III, which provides: "Nor shall any person be denied the equal protection of the laws."
Essentially, 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 different from one another on the basis of substantial distinctions related
to the objective of the law; when things or persons are different in facts or circumstances,
they may be treated differently in law.20
Appreciation of how the constitutional equality provision applies inevitably leads to the
conclusion that no basis exists in the present case for an equal protection challenge. The
law can treat barangay officials differently from other local elective officials because the
Constitution itself provides a significant distinction between these elective officials with
respect to length of term and term limitation. The clear distinction, expressed in the
Constitution itself, is that while the Constitution provides for a three-year term and three-
Josef Elvin Campos
term limit for local elective officials, it left the length of term and the application of the three-
term limit or any form of term limitation for determination by Congress through legislation.
Not only does this disparate treatment recognize substantial distinctions, it recognizes as
well that the Constitution itself allows a non-uniform treatment. No equal protection violation
can exist under these conditions.
From another perspective, we see no reason to apply the equal protection clause as a
standard because the challenged proviso did not result in any differential treatment
between barangay officials and all other elective officials. This conclusion proceeds from
our ruling on the retroactivity issue that the challenged proviso does not involve any
retroactive application.
Violation of the Constitutional
One Subject- One Title Rule
Every bill passed by the Congress shall embrace only one subject which shall be expressed
in the title thereof. Fariñas v. Executive Secretary 21 provides the reasons for this
constitutional requirement and the test for its application, as follows:
The proscription is aimed against the evils of the so-called omnibus bills and log-rolling
legislation as well as surreptitious and/or unconsidered encroaches. The provision merely
calls for all parts of an act relating to its subject finding expression in its title.
To determine whether there has been compliance with the constitutional requirement that
the subject of an act shall be expressed in its title, the Court laid down the rule that –
Constitutional provisions relating to the subject matter and titles of statutes should not be so
narrowly construed as to cripple or impede the power of legislation. The requirement that
the subject of an act shall be expressed in its title should receive a reasonable and not a
technical construction. It is sufficient if the title be comprehensive enough reasonably to
include the general object which a statute seeks to effect, without expressing each and
every end and means necessary or convenient for the accomplishing of that object. Mere
details need not be set forth. The title need not be an abstract or index of the Act.
xxxx
x x x This Court has held that 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 subject.
xxxx
x x x Moreover, the avowed purpose of the constitutional directive that the subject of a bill
should be embraced in its title is to apprise the legislators of the purposes, the nature and
scope of its provisions, and prevent the enactment into law of matters which have not
received the notice, action and study of the legislators and the public.
We find, under these settled parameters, that the challenged proviso does not violate the
one subject-one title rule.
First, the title of RA No. 9164, "An Act Providing for
Synchronized Barangay and Sangguniang Kabataang Elections, amending Republic Act
No. 7160, as amended, otherwise known as the Local Government Code of 1991," states
the law’s general subject matter – the amendment of the LGC to synchronize
the barangay and SK elections and for other purposes. To achieve synchronization of
the barangay and SK elections, the reconciliation of the varying lengths of the terms of
office of barangay officials and SK officials is necessary. Closely related with length of term
is term limitation which defines the total number of terms for which a barangay official may
run for and hold office. This natural linkage demonstrates that term limitation is not foreign
to the general subject expressed in the title of the law.
Second, the congressional debates we cited above show that the legislators and the public
they represent were fully informed of the purposes, nature and scope of the law’s
provisions. Term limitation therefore received the notice, consideration, and action from
both the legislators and the public.
Finally, to require the inclusion of term limitation in the title of RA No. 9164 is to make the
title an index of all the subject matters dealt with by law; this is not what the constitutional
requirement contemplates.
WHEREFORE, premises considered, we GRANT the petition and accordingly AFFIRM the
constitutionality of the challenged proviso under Section 2, paragraph 2 of Republic Act No.
9164. Costs against the respondents.
SO ORDERED.
ARTURO D. BRION
Associate Justice
Josef Elvin Campos
4. Rules on Succession
Talaga v. Comelec (G.R. No. 196804, 09 October 2012)
G.R. No. 196804 October 9, 2012
MAYOR BARBARA RUBY C. TALAGA, Petitioner,
vs.
COMMISSION ON ELECTIONS and RODERICK A. ALCALA, Respondents.
x-----------------------x
G.R. No. 197015
PHILIP M. CASTILLO, Petitioner,
vs.
COMMISSION ON ELECTIONS, BARBARA RUBY TALAGA and RODERICK A.
ALCALA, Respondents.
DECISION
BERSAMIN, J.:
In focus in these consolidated special civil actions are the disqualification of a substitute
who was proclaimed the winner of a mayoralty election; and the ascertainment of who
should assume the office following the substitute’s disqualification.
The consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution
issued on May 20, 2011 in SPC No. 10-024 by the Commission on Elections (COMELEC),
the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered:
1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the
Second Division;
2. GRANTING the petition in intervention of Roderick A. Alcala;
3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as
mayor of Lucena City and CANCELLING the Certificate of Canvass and
Proclamation issued therefor;
4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging
the functions of the Office of the Mayor;
5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the
proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under
Section 44 of the Local Government Code;
6. DIRECTING the Clerk of Court of the Commission to furnish copies of this
Resolution to the Office of the President of the Philippines, the Department of Interior
and Local Government, the Department of Finance and the Secretary of the
Sangguniang Panglunsod of Lucena City.
Let the Department of Interior and Local Government and the Regional Election Director of
Region IV of COMELEC implement this resolution.
SO ORDERED.1
Antecedents
On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M.
Castillo (Castillo) respectively filed their certificates of candidacy (CoCs) for the position of
Mayor of Lucena City to be contested in the scheduled May 10, 2010 national and local
elections.2
Ramon, the official candidate of the Lakas-Kampi-CMD, 3 declared in his CoC that he was
eligible for the office he was seeking to be elected to.
Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition
denominated as In the Matter of the Petition to Deny Due Course to or Cancel Certificate of
Candidacy of Ramon Y. Talaga, Jr. as Mayor for Having Already Served Three (3)
Consecutive Terms as a City Mayor of Lucena, which was docketed as SPA 09-029
(DC).4 He alleged
therein that Ramon, despite knowing that he had been elected and had served three
consecutive terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in
the May 10, 2010 national and local elections.
The pertinent portions of Castillo’s petition follow:
1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao
Crossing, Lucena City but may be served with summons and other processes of this
Commission at the address of his counsel at 624 Aurora Blvd., Lucena City 4301;
2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a resident
of Barangay Ibabang Iyam, Lucena City and with postal address at the Office of the
Josef Elvin Campos
City Mayor, City Hall, Lucena City, where he may be served with summons and other
processes of this Commission;
3. Petitioner, the incumbent city vice-mayor of Lucena having been elected during
the 2007 local elections, is running for city mayor of Lucena under the Liberal party
this coming 10 May 2010 local elections and has filed his certificate of candidacy for
city mayor of Lucena;
4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and
2007 local elections based on the records of the Commission on Elections of Lucena
City and had fully served the aforesaid three (3) terms without any voluntary and
involuntary interruption;
5. Except the preventive suspension imposed upon him from 13 October 2005 to 14
November 2005 and from 4 September 2009 to 30 October 2009 pursuant to
Sandiganbayan 4th Division Resolution in Criminal Case No. 27738 dated 3 October
2005, the public service as city mayor of the respondent is continuous and
uninterrupted under the existing laws and jurisprudence;
6. There is no law nor jurisprudence to justify the filing of the certificate of candidacy
of the respondent, hence, such act is outrightly unconstitutional, illegal, and highly
immoral;
7. Respondent, knowing well that he was elected for and had fully served three (3)
consecutive terms as a city mayor of Lucena, he still filed his Certificate of
Candidacy for City Mayor of Lucena for this coming 10 May 2010 national and local
elections;
8. Under the Constitution and existing Election Laws, New Local Government Code
of the Philippines, and jurisprudence the respondent is no longer entitled and is
already disqualified to be a city mayor for the fourth consecutive term;
9. The filing of the respondent for the position of city mayor is highly improper,
unlawful and is potentially injurious and prejudicial to taxpayers of the City of Lucena;
and
10. It is most respectfully prayed by the petitioner that the respondent be declared
disqualified and no longer entitled to run in public office as city mayor of Lucena City
based on the existing law and jurisprudence. 5
The petition prayed for the following reliefs, to wit:
WHEREFORE, premises considered, it is respectfully prayed that the Certificate of
Candidacy filed by the respondent be denied due course to or cancel the same and that he
be declared as a disqualified candidate under the existing Election Laws and by the
provisions of the New Local Government Code.6 (Emphasis supplied.)
Ramon countered that that the Sandiganbayan had preventively suspended him from office
during his second and third terms; and that the three-term limit rule did not then apply to him
pursuant to the prevailing jurisprudence7 to the effect that an involuntary separation from
office amounted to an interruption of continuity of service for purposes of the application of
the three-term limit rule.
In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino, Jr. v.
Commission on Elections,8 holding that preventive suspension, being a mere temporary
incapacity, was not a valid ground for avoiding the effect of the three-term limit rule. Thus,
on December 30, 2009, Ramon filed in the COMELEC a Manifestation with Motion to
Resolve, taking into account the intervening ruling in Aldovino. Relevant portions of his
Manifestation with Motion to Resolve are quoted herein, viz:
4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena
City, the rule that ‘where the separation from office is caused by reasons beyond the control
of the officer – i.e. involuntary – the service of term is deemed interrupted’ has not yet been
overturned by the new ruling of the Supreme Court. As a matter of fact, the prevailing rule
then of the Honorable Commission in [sic] respect of the three (3)-term limitation was its
decision in the case of Aldovino, et al. vs. Asilo where it stated:
"Thus, even if respondent was elected during the 2004 elections, which was supposedly his
third and final term as city councilor, the same cannot be treated as a complete service or
full term in office since the same was interrupted when he was suspended by the
Sandiganbayan Fourth Division. And the respondent actually heeded the suspension order
since he did not receive his salary during the period October 16-31 and November 1-15 by
reason of his actual suspension from office. And this was further bolstered by the fact that
the DILG issued a
Memorandum directing him, among others, to reassume his position." (Emphasis supplied.)
5. Clearly, there was no misrepresentation on the part of respondent as would constitute a
ground for the denial of due course to and/or the cancellation of respondent’s certificate of
Josef Elvin Campos
candidacy at the time he filed the same. Petitioner’s ground for the denial of due course to
and/or the cancellation of respondent’s certificate of candidacy thus has no basis, in fact
and in law, as there is no ground to warrant such relief under the Omnibus Election Code
and/or its implementing laws.
6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on the
three (3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to run for
the position of Mayor of Lucena City having served three (3) (albeit interrupted) terms as
Mayor of Lucena City prior to the filing of his certificate of candidacy for the 2010 elections.
7. In view of the foregoing premises and new jurisprudence on the matter, respondent
respectfully submits the present case for decision declaring him as DISQUALIFIED to run
for the position of Mayor of Lucena City. 9
Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena
City in the May 10, 2010 national and local elections, Ramon did not withdraw his CoC.
Acting on Ramon’s Manifestation with Motion to Resolve, the COMELEC First Division
issued a Resolution on April 19, 2010,10 disposing as follows:
WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly,
Ramon Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of Lucena City for
the 10 May 2010 National and Local Elections.
SO ORDERED.
Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010
Resolution of the COMELEC First Division. 11 Later on, however, he filed at 9:00 a.m. of May
4, 2010 an Ex-parte Manifestation of Withdrawal of the Pending Motion for
Reconsideration.12 At 4:30 p.m. on the same date, Barbara Ruby filed her own CoC for
Mayor of Lucena City in substitution of Ramon, attaching thereto the Certificate of
Nomination and Acceptance (CONA) issued by Lakas-Kampi-CMD, the party that had
nominated Ramon.13
On May 5, 2010, the COMELEC En Banc, acting on Ramon’s Ex parte Manifestation of
Withdrawal, declared the COMELEC First Division’s Resolution dated April 19, 2010 final
and executory.14
On election day on May 10, 2010, the name of Ramon remained printed on the ballots but
the votes cast in his favor were counted in favor of Barbara Ruby as his substitute
candidate, resulting in Barbara Ruby being ultimately credited with 44,099 votes as against
Castillo’s 39,615 votes.15
Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the
suspension of Barbara Ruby’s proclamation.16
It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its
Law Department,17 gave due course to Barbara Ruby’s CoC and CONA through Resolution
No. 8917, thereby including her in the certified list of candidates. 18 Consequently, the CBOC
proclaimed Barbara Ruby as the newly-elected Mayor of Lucena City. 19
On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the
COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could not substitute
Ramon because his CoC had been cancelled and denied due course; and Barbara Ruby
could not be considered a candidate because the COMELEC En Banc had approved her
substitution three days after the elections; hence, the votes cast for Ramon should be
considered stray.
In her Comment on the Petition for Annulment of Proclamation, 21 Barbara Ruby maintained
the validity of her substitution. She countered that the COMELEC En Banc did not deny due
course to or cancel Ramon’s COC, despite a declaration of his disqualification, because
there was no finding that he had committed misrepresentation, the ground for the denial of
due course to or cancellation of his COC. She prayed that with her valid substitution,
Section 12 of Republic Act No. 9006 22 applied, based on which the votes cast for Ramon
were properly counted in her favor.
On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City,
sought to intervene,23 positing that he should assume the post of Mayor because Barbara
Ruby’s substitution had been invalid and Castillo had clearly lost the elections.
On January 11, 2011, the COMELEC Second Division dismissed Castillo’s petition and
Alcala’s petition-in-intervention,24 holding:
In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was the
basis for the proclamation of Ruby on that date. He, however, failed to file any action within
the prescribed period either in the Commission or the Supreme Court assailing the said
resolution. Thus, the said resolution has become final and executory. It cannot anymore be
altered or reversed.
xxxx
Josef Elvin Campos
x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was
actually for the disqualification of Ramon for having served three consecutive terms, which
is a ground for his disqualification under the Constitution in relation to Section 4(b)3 of
Resolution 8696. There was no mention therein that Ramon has committed material
representation that would be a ground for the cancellation or denial of due course to the
CoC of Ramon under Section 78 of the Omnibus Election Code. The First Division, in fact,
treated the petition as one for disqualification as gleaned from the body of the resolution
and its dispositive portion quoted above. This treatment of the First Division of the petition
as one for disqualification only is affirmed by the fact that its members signed Resolution
No. 8917 where it was clearly stated that the First Division only disqualified Ramon.
Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not applicable.
Ramon was rightly substituted by Ruby. As such, the votes for Ramon cannot be
considered as stray votes but should be counted in favor of Ruby since the substituted and
the substitute carry the same surname – Talaga, as provided in Section 12 of Republic Act
No. 9006.
xxxx
Moreover, there is no provision in the Omnibus Election Code or any election laws for that
matter which requires that the substitution and the Certificate of Candidacy of the substitute
should be approved and given due course first by the Commission or the Law Department
before it can be considered as effective. All that Section 77 of the Omnibus Election Code
as implemented by Section 13 of Resolution No. 8678 requires is that it should be filed with
the proper office. The respondent is correct when she argued that in fact even the BEI can
receive a CoC of a substitute candidate in case the cause for the substitution happened
between the day before the election and mid-day of election day. Thus, even if the approval
of the substitution was made after the election, the substitution became effective on the
date of the filing of the CoC with the Certificate of Nomination and Acceptance.
There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor of
Lucena City, the counting of the votes of Ramon in favor of Ruby is proper. The
proclamation, thus, of Ruby as mayor elect of Lucena City is in order. Hence, we find no
cogent reason to annul the proclamation of respondent Barbara Ruby C. Talaga as the duly
elected Mayor of the City of Lucena after the elections conducted on May 10, 2010. 25
Acting on Castillo and Alcala’s respective motions for reconsideration, the COMELEC En
Banc issued the assailed Resolution dated May 20, 2011 reversing the COMELEC Second
Division’s ruling.26
Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without a
hearing as a mere incident of the COMELEC’s ministerial duty to receive the COCs of
substitute candidates; (b) Resolution No. 8917 was based on the wrong facts; and (c)
Ramon’s disqualification was resolved with finality only on May 5, 2010, the COMELEC En
Banc concluded that Barbara Ruby could not have properly substituted Ramon but had
simply become an additional candidate who had filed her COC out of time; and held that
Vice Mayor Alcala should succeed to the position pursuant to Section 44 of the Local
Government Code (LGC).27
Issues
The core issue involves the validity of the substitution by Barbara Ruby as candidate for the
position of Mayor of Lucena City in lieu of Ramon, her husband.
Ancillary to the core issue is the determination of who among the contending parties should
assume the contested elective position.
Ruling
The petitions lack merit.
1.
Existence of a valid CoC is a condition
sine qua non for a valid substitution
The filing of a CoC within the period provided by law is a mandatory requirement for any
person to be considered a candidate in a national or local election. This is clear from
Section 73 of the Omnibus Election Code, to wit:
Section 73. Certificate of candidacy — No person shall be eligible for any elective public
office unless he files a sworn certificate of candidacy within the period fixed herein.
Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:
Section 74. Contents of certificate of candidacy.—The certificate of candidacy shall state
that the person filing it is announcing his candidacy for the office stated therein and that he
is eligible for said office; if for Member of the Batasang Pambansa, the province, including
its component cities, highly urbanized city or district or sector which he seeks to represent;
the political party to which he belongs; civil status; his date of birth; residence; his post
Josef Elvin Campos
office address for all election purposes; his profession or occupation; that he will support
and defend the Constitution of the Philippines and will maintain true faith and allegiance
thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a foreign country;
that the obligation imposed by his oath is assumed voluntarily, without mental reservation or
purpose of evasion; and that the facts stated in the certificate of candidacy are true to the
best of his knowledge. x x x
The evident purposes of the requirement for the filing of CoCs and in fixing the time limit for
filing them are, namely: (a) to enable the voters to know, at least 60 days prior to the regular
election, the candidates from among whom they are to make the choice; and (b) to avoid
confusion and inconvenience in the tabulation of the votes cast. If the law does not confine
to the duly-registered candidates the choice by the voters, there may be as many persons
voted for as there are voters, and votes may be cast even for unknown or fictitious persons
as a mark to identify the votes in favor of a candidate for another office in the same
election.28 Moreover, according to Sinaca v. Mula,29 the CoC is:
x x x in the nature of a formal manifestation to the whole world of the candidate’s political
creed or lack of political creed. It is a statement of a person seeking to run for a public office
certifying that he announces his candidacy for the office mentioned and that he is eligible for
the office, the name of the political party to which he belongs, if he belongs to any, and his
post-office address for all election purposes being as well stated.
Accordingly, a person’s declaration of his intention to run for public office and his affirmation
that he possesses the eligibility for the position he seeks to assume, followed by the timely
filing of such declaration, constitute a valid CoC that render the person making the
declaration a valid or official candidate.
There are two remedies available to prevent a candidate from running in an electoral race.
One is through a petition for disqualification and the other through a petition to deny due
course to or cancel a certificate of candidacy. The Court differentiated the two remedies in
Fermin v. Commission on Elections,30 thuswise:
x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of
the Omnibus Election Code, or Section 40 of the Local Government Code. On the other
hand, a petition to deny due course to or cancel a CoC can only be grounded on a
statement of a material representation in the said certificate that is false. The petitions also
have different effects. While a person who is disqualified under Section 68 is merely
prohibited to continue as a candidate, the person whose certificate is cancelled or denied
due course under Section 78 is not treated as a candidate at all, as if he/she never filed a
CoC.31
Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election
Code (i.e., prohibited acts of candidates, and the fact of a candidate’s permanent residency
in another country when that fact affects the residency requirement of a candidate) are
separate and distinct from the grounds for the cancellation of or denying due course to a
COC (i.e., nuisance candidates under Section 69 of the Omnibus Election Code; and
material misrepresentation under Section 78 of the Omnibus Election Code), the Court has
recognized in Miranda v. Abaya32 that the following circumstances may result from the
granting of the petitions, to wit:
(1) A candidate may not be qualified to run for election but may have filed a valid
CoC;
(2) A candidate may not be qualified and at the same time may not have filed a valid
CoC; and
(3) A candidate may be qualified but his CoC may be denied due course or
cancelled.
In the event that a candidate is disqualified to run for a public office, or dies, or withdraws
his CoC before the elections, Section 77 of the Omnibus Election Code provides the option
of substitution, to wit:
Section 77. Candidates in case of death, disqualification or withdrawal. — If after the last
day for the filing of certificates of candidacy, an official candidate of a registered or
accredited political party dies, withdraws or is disqualified for any cause, only a person
belonging to, and certified by, the same political party may file a certificate of candidacy to
replace the candidate who died, withdrew or was disqualified. The substitute candidate
nominated by the political party concerned may file his certificate of candidacy for the office
affected in accordance with the preceding sections not later than mid-day of the day of the
election. If the death, withdrawal or disqualification should occur between the day before the
election and mid-day of election day, said certificate may be filed with any board of election
Josef Elvin Campos
inspectors in the political subdivision where he is a candidate, or, in the case of candidates
to be voted for by the entire electorate of the country, with the Commission.
Nonetheless, whether the ground for substitution is death, withdrawal or disqualification of a
candidate, Section 77 of the Omnibus Election Code unequivocally states that only an
official candidate of a registered or accredited party may be substituted.
Considering that a cancelled CoC does not give rise to a valid candidacy, 33 there can be no
valid substitution of the candidate under Section 77 of the Omnibus Election Code. It should
be clear, too, that a candidate who does not file a valid CoC may not be validly substituted,
because a person without a valid CoC is not considered a candidate in much the same way
as any person who has not filed a CoC is not at all a candidate. 34
Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the
Omnibus Election Code may not be substituted. A withdrawal of candidacy can only give
effect to a substitution if the substitute candidate submits prior to the election a sworn CoC
as required by Section 73 of the Omnibus Election Code. 35
2.
Declaration of Ramon’s disqualification
rendered his CoC invalid; hence, he was not
a valid candidate to be properly substituted
In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the
COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature of a
petition to deny due course to or cancel a CoC under Section 78 of the Omnibus Election
Code.
In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on
Elections:36
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not
based on the lack of qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications required of the public
office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is
eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in
relation to the constitutional and statutory provisions on qualifications or eligibility for public
office. If the candidate subsequently states a material representation in the CoC that is
false, the COMELEC, following the law, is empowered to deny due course to or cancel such
certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo
warranto proceeding under Section 253 of the OEC since they both deal with the eligibility
or qualification of a candidate, with the distinction mainly in the fact that a "Section 78"
petition is filed before proclamation, while a petition for quo warranto is filed after
proclamation of the winning candidate.
Castillo’s petition contained essential allegations pertaining to a Section 78 petition, namely:
(a) Ramon made a false representation in his CoC; (b) the false representation referred to a
material matter that would affect the substantive right of Ramon as candidate (that is, the
right to run for the election for which he filed his certificate); and (c) Ramon made the false
representation with the intention to deceive the electorate as to his qualification for public
office or deliberately attempted to mislead, misinform, or hide a fact that would otherwise
render him ineligible.37 The petition expressly challenged Ramon’s eligibility for public office
based on the prohibition stated in the Constitution and the Local Government Code against
any person serving three consecutive terms, and specifically prayed that "the Certificate of
Candidacy filed by the respondent Ramon be denied due course to or cancel the same and
that he be declared as a disqualified candidate." 38
The denial of due course to or the cancellation of the CoC under Section 78 involves a
finding not only that a person lacks a qualification but also that he made a material
representation that is false.39 A petition for the denial of due course to or cancellation of CoC
that is short of the requirements will not be granted. In Mitra v. Commission on
Elections,40 the Court stressed that there must also be a deliberate attempt to mislead, thus:
The false representation under Section 78 must likewise be a "deliberate attempt to
mislead, misinform, or hide a fact that would otherwise render a candidate ineligible." Given
the purpose of the requirement, it must be made with the intention to deceive the electorate
as to the would-be candidate’s qualifications for public office. Thus, the misrepresentation
that Section 78 addresses cannot be the result of a mere innocuous mistake, and cannot
exist in a situation where the intent to deceive is patently absent, or where no deception on
the electorate results. The deliberate character of the misrepresentation necessarily follows
from a consideration of the consequences of any material falsity: a candidate who falsifies a
material fact cannot run; if he runs and is elected, he cannot serve; in both cases, he can be
prosecuted for violation of the election laws.
Josef Elvin Campos
It is underscored, however, that a Section 78 petition should not be interchanged or
confused with a Section 68 petition. The remedies under the two sections are different, for
they are based on different grounds, and can result in different eventualities. 41 A person who
is disqualified under Section 68 is prohibited to continue as a candidate, but a person
whose CoC is cancelled or denied due course under Section 78 is not considered as a
candidate at all because his status is that of a person who has not filed a CoC. 42 Miranda v.
Abaya43 has clarified that a candidate who is disqualified under Section 68 can be validly
substituted pursuant to Section 77 because he remains a candidate until disqualified; but a
person whose CoC has been denied due course or cancelled under Section 78 cannot be
substituted because he is not considered a candidate.1âwphi1
To be sure, the cause of Ramon’s ineligibility (i.e., the three-term limit) is enforced both by
the Constitution and statutory law. Article X, Section 8 of the 1987 Constitution provides:
was elected.
Section 43 of the Local Government Code reiterates the constitutional three-term limit for all
elective local officials, to wit:
Section 43. Term of Office. – (a) x x x
elective official concerned was elected. (Emphasis supplied.)
The objective of imposing the three-term limit rule was "to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a
prolonged stay in the same office." The Court underscored this objective in Aldovino, Jr. v.
Commission on Elections,44 stating:
x x x The framers of the Constitution specifically included an exception to the people’s
freedom to choose those who will govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a
prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city
mayor after having served for three consecutive terms as a municipal mayor would
obviously defeat the very intent of the framers when they wrote this exception. Should he be
allowed another three consecutive terms as mayor of the City of Digos, petitioner would
then be possibly holding office as chief executive over the same territorial jurisdiction and
inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be
avoided by the Constitution, if not abhorred by it.
To accord with the constitutional and statutory proscriptions, Ramon was absolutely
precluded from asserting an eligibility to run as Mayor of Lucena City for the fourth
consecutive term. Resultantly, his CoC was invalid and ineffectual ab initio for containing
the incurable defect consisting in his false declaration of his eligibility to run. The invalidity
and inefficacy of his CoC made his situation even worse than that of a nuisance candidate
because the nuisance candidate may remain eligible despite cancellation of his CoC or
despite the denial of due course to the CoC pursuant to Section 69 of the Omnibus Election
Code.45
Ramon himself specifically admitted his ineligibility when he filed his Manifestation with
Motion to Resolve on December 30, 2009 in the COMELEC. 46 That sufficed to render his
CoC invalid, considering that for all intents and purposes the COMELEC’s declaration of his
disqualification had the effect of announcing that he was no candidate at all.
We stress that a non-candidate like Ramon had no right to pass on to his substitute. As
Miranda v. Abaya aptly put it:
Even on the most basic and fundamental principles, it is readily understood that the concept
of a substitute presupposes the existence of the person to be substituted, for how can a
person take the place of somebody who does not exist or who never was. The Court has no
other choice but to rule that in all the instances enumerated in Section 77 of the Omnibus
Election Code, the existence of a valid certificate of candidacy seasonably filed is a
requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of
candidacy in the first place because, if the disqualified candidate did not have a valid and
seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person
was not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we
were to allow the so-called "substitute" to file a "new" and "original" certificate of candidacy
Josef Elvin Campos
beyond the period for the filing thereof, it would be a crystalline case of unequal protection
of the law, an act abhorred by our Constitution. 47 (Emphasis supplied)
3.
Granting without any qualification of petition in
SPA No. 09-029(DC) manifested COMELEC’s intention to
declare Ramon disqualified and to cancel his CoC
That the COMELEC made no express finding that Ramon committed any deliberate
misrepresentation in his CoC was of little consequence in the determination of whether his
CoC should be deemed cancelled or not.
In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC "be not
given due course and/or cancelled." The COMELEC categorically granted "the petition" and
then pronounced — in apparent contradiction — that Joel Pempe Miranda was
"disqualified." The
Court held that the COMELEC, by granting the petition without any qualification, disqualified
Joel Pempe Miranda and at the same time cancelled Jose Pempe Miranda’s CoC. The
Court explained:
The question to settle next is whether or not aside from Joel "Pempe" Miranda being
disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had
likewise been denied due course and cancelled.
The Court rules that it was.
Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent
for the position of Mayor for the City of Santiago be not given due course and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
(Rollo, p. 31; Emphasis ours.)
In resolving the petition filed by private respondent specifying a very particular relief, the
Comelec ruled favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the
Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for
the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local
elections.
SO ORDERED.
(p.43, Rollo; Emphasis ours.)
From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in
SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in
the petition was GRANTED, there being no qualification on the matter whatsoever. The
disqualification was simply ruled over and above the granting of the specific prayer for
denial of due course and cancellation of the certificate of candidacy. x x x. 49
xxxx
x x x. There is no dispute that the complaint or petition filed by private respondent in SPA
No. 98-019 is one to deny due course and to cancel the certificate of candidacy of Jose
"Pempe" Miranda (Rollo, pp. 26-31). There is likewise no question that the said petition was
GRANTED without any qualification whatsoever. It is rather clear, therefore, that whether or
not the Comelec granted any further relief in SPA No. 98-019 by disqualifying the candidate,
the fact remains that the said petition was granted and that the certificate of candidacy of
Jose "Pempe" Miranda was denied due course and cancelled. x x x. 50
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the
particular relief of cancelling or denying due course to the CoC prayed for in the petition by
not subjecting that relief to any qualification.
Miranda v. Abaya applies herein. Although Castillo’s petition in SPA No. 09-029 (DC)
specifically sought both the disqualification of Ramon and the denial of due course to or
cancellation of his CoC, the COMELEC categorically stated in the Resolution dated April 19,
2010 that it was granting the petition. Despite the COMELEC making no finding of material
misrepresentation on the part of Ramon, its granting of Castillo’s petition without express
qualifications manifested that the COMELEC had cancelled Ramon’s CoC based on his
apparent ineligibility. The Resolution dated April 19, 2010 became final and executory
because Castillo did not move for its reconsideration, and because Ramon later withdrew
his motion for reconsideration filed in relation to it.
4.
Elected Vice Mayor must succeed
and assume the position of Mayor
due to a permanent vacancy in the office
Josef Elvin Campos
On the issue of who should assume the office of Mayor of Lucena City, Castillo submits that
the doctrine on the rejection of the second-placer espoused in Labo, Jr. v. Commission on
Elections51 should not apply to him because Ramon’s disqualification became final prior to
the elections.52 Instead, he cites Cayat v. Commission on Elections, 53 where the Court said:
x x x In Labo there was no final judgment of disqualification before the elections. The
doctrine on the rejection of the second placer was applied in Labo and a host of other cases
because the judgment declaring the candidate’s disqualification in Labo and the other cases
had not become final before the elections. To repeat, Labo and the other cases applying the
doctrine on the rejection of the second placer have one common essential condition — the
disqualification of the candidate had not become final before the elections. This essential
condition does not exist in the present case.
Thus, in Labo, Labo’s disqualification became final only on 14 May 1992, three days after
the 11 May 1992 elections. On election day itself, Labo was still legally a candidate. In the
present case, Cayat was disqualified by final judgment 23 days before the 10 May 2004
elections. On election day, Cayat was no longer legally a candidate for mayor. In short,
Cayat’s candidacy for Mayor of Buguias, Benguet was legally non-existent in the 10 May
2004 elections.
The law expressly declares that a candidate disqualified by final judgment before an
election cannot be voted for, and votes cast for him shall not be counted. This is a
mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law
of 1987, states:
Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong. (Emphasis added)
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first
sentence of Section 6. The second is when the disqualification becomes final after the
elections, which is the situation covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law
governing the first situation is categorical: a candidate disqualified by final judgment before
an election cannot be voted for, and votes cast for him shall not be counted. The Resolution
disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections.
Therefore, all the 8,164 votes cast in Cayat’s favor are stray. Cayat was never a candidate
in the 10 May 2004 elections. Palileng’s proclamation is proper because he was the sole
and only candidate, second to none.54
Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume the
position of Mayor of Lucena City for having obtained the highest number of votes among the
remaining qualified candidates.
It would seem, then, that the date of the finality of the COMELEC resolution declaring
Ramon disqualified is decisive. According to Section 10, Rule 19 of the COMELEC’s
Resolution No. 8804,55 a decision or resolution of a Division becomes final and executory
after the lapse of five days following its promulgation unless a motion for reconsideration is
seasonably filed. Under Section 8, Rule 20 of Resolution No. 8804, the decision of the
COMELEC En Banc becomes final and executory five days after its promulgation and
receipt of notice by the parties.
The COMELEC First Division declared Ramon disqualified through its Resolution dated
April 19, 2010, the copy of which Ramon received on the same date. 56 Ramon filed a motion
for reconsideration on April 21, 2010 57 in accordance with Section 7 of COMELEC
Resolution No. 8696,58 but withdrew the motion on May 4, 2010, 59 ostensibly to allow his
substitution by Barbara Ruby. On his part, Castillo did not file any motion for
reconsideration. Such circumstances indicated that there was no more pending matter that
could have effectively suspended the finality of the ruling in due course. Hence, the
Resolution dated April 19, 2010 could be said to have attained finality upon the lapse of five
days from its promulgation and receipt of it by the parties. This happened probably on April
24, 2010. Despite such finality, the COMELEC En Banc continued to act on the withdrawal
by Ramon of his motion for reconsideration through the May 5, 2010 Resolution declaring
the April 19, 2010 Resolution of the COMELEC First Division final and executory.
Josef Elvin Campos
Yet, we cannot agree with Castillo’s assertion that with Ramon’s disqualification becoming
final prior to the May 10, 2010 elections, the ruling in Cayat was applicable in his favor.
Barbara Ruby’s filing of her CoC in substitution of Ramon significantly differentiated this
case from the factual circumstances obtaining in Cayat. Rev. Fr. Nardo B. Cayat, the
petitioner in Cayat, was disqualified on April 17, 2004, and his disqualification became final
before the May 10, 2004 elections. Considering that no substitution of Cayat was made,
Thomas R. Palileng, Sr., his rival, remained the only candidate for the mayoralty post in
Buguias, Benguet. In contrast, after Barbara Ruby substituted Ramon, the May 10, 2010
elections proceeded with her being regarded by the electorate of Lucena City as a bona fide
candidate. To the electorate, she became a contender for the same position vied for by
Castillo, such that she stood on the same footing as Castillo. Such standing as a candidate
negated Castillo’s claim of being the candidate who obtained the highest number of votes,
and of being consequently entitled to assume the office of Mayor.
Indeed, Castillo could not assume the office for he was only a second placer.1âwphi1 Labo,
Jr. should be applied. There, the Court emphasized that the candidate obtaining the second
highest number of votes for the contested office could not assume the office despite the
disqualification of the first placer because the second placer was "not the choice of the
sovereign will."60 Surely, the Court explained, a minority or defeated candidate could not be
deemed elected to the office.61 There was to be no question that the second placer lost in
the election, was repudiated by the electorate, and could not assume the vacated
position.62 No law imposed upon and compelled the people of Lucena City to accept a loser
to be their political leader or their representative. 63
The only time that a second placer is allowed to take the place of a disqualified winning
candidate is when two requisites concur, namely: (a) the candidate who obtained the
highest number of votes is disqualified; and (b) the electorate was fully aware in fact and in
law of that candidate’s disqualification as to bring such awareness within the realm of
notoriety but the electorate still cast the plurality of the votes in favor of the ineligible
candidate.64 Under this sole exception, the electorate may be said to have waived the
validity and efficacy of their votes by notoriously misapplying their franchise or throwing
away their votes, in which case the eligible candidate with the second highest number of
votes may be deemed elected.65 But the exception did not apply in favor of Castillo simply
because the second element was absent. The electorate of Lucena City were not the least
aware of the fact of Barbara Ruby’s ineligibility as the substitute. In fact, the COMELEC En
Banc issued the Resolution finding her substitution invalid only on May 20, 2011, or a full
year after the decisions.
On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from
assuming the position of Mayor of Lucena City. To begin with, there was no valid candidate
for her to substitute due to Ramon’s ineligibility. Also, Ramon did not voluntarily withdraw
his CoC before the elections in accordance with Section 73 of the Omnibus Election Code.
Lastly, she was not an additional candidate for the position of Mayor of Lucena City
because her filing of her CoC on May 4, 2010 was beyond the period fixed by law. Indeed,
she was not, in law and in fact, a candidate. 66
A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy
should be filled pursuant to the law on succession defined in Section 44 of the LGC, to wit: 67
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor,
and Vice-Mayor. – If a permanent vacancy occurs in the office of the governor or mayor, the
vice-governor or vice-mayor concerned shall become the governor or mayor. x x x
WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS
the Resolution issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the
petitioners to pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
Gamboa v. Aguirre (G.R. No. 134213, 20 July 1999)

G.R. No. 134213 July 20, 1999
ROMEO J. GAMBOA, JR., petitioner,
vs.
MARCELO AGUIRRE, JR., and JUAN Y. ARANETA, respondents.

YNARES-SANTIAGO, J.:
Josef Elvin Campos
The query herein is purely legal. May an incumbent Vice-Governor, while concurrently the
Acting Governor, continue to preside over the sessions of the Sangguniang
Panlalawigan (SP)?
The facts are not in dispute.1âwphi1.nêt
In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and
respondents Marcelo Aguirre, Jr., and Juan Y. Araneta were elected Negros Occidental
Governor, Vice-Governor and SP members, respectively. Sometime in August of 1995, the
governor designated petitioner as Acting Governor for the duration of the former's official
trip abroad until his return. When the SP held its regular session on September 6, 1995,
respondents questioned the authority of petitioner to preside therein in view of his
designation as Acting Governor and asked him to vacate the Chair. The latter, however,
refused to do so. In another session, seven (7) members of the SP voted to allow petitioner
to continue presiding while four (4) others voted against with one (1) abstention. On
September 22, 1995, respondents filed before the lower court a petition for declatory relief
and prohibition. In the meantime, on October 2, 1995, the Governor re-assumed his office.
Later, the trial court rendered a decision and declared petitioner as "temporarily legally
incapacitated to preside over the sessions of the SP during the period that he is the Acting
Governor." 1 Aggrieved, petitioner filed a petition for review raising the issue earlier
mentioned. Although this case is dismissible for having become moot and academic
considering the expiration in 1998 of the terms of office of the local officials involved herein,
the Court nonetheless proceeds to resolve this common controversy but novel issue under
the existing laws on local government.
Sec. 49(a) and 466(a) (1) of Republic Act (R.A.) No. 7160 otherwise known as the Local
Government Code of 1991, provide that the Vice-Governor shall be the presiding officer of
the SP.2 In addition to such function, he "become(s)" 3 the Governor and "assume(s)" 4 the
higher office for the unexpired term of his predecessor, in case of "permanent vacancy"
therein. When the vacancy, however, is merely temporary, the Vice-Governor "shall
automatically exercise the powers (subject to certain limitations) and perform the duties and
functions" 5 of the Governor. It may be noted that the code provides only for modes of
succession in case of permanent vacancy in the office of the Governor and the Vice-
Governor (whether single or simultaneously) as well as in case of a temporary vacancy in
the office of the Governor. But, no such contingency is provided in case of temporary
vacancy in the office of the Vice-Governor, just like the 1983 Local Government Code. 6
It is correct that when the Vice-Governor exercises the "powers and duties" of the Office of
the Governor, he does not assume the latter office. He only "acts" as the Governor but does
not "become" the Governor. His assumption of the powers, duties and functions of the
provincial Chief Executive does not create a permanent vacuum or vacancy in his position
as the Vice-Governor. Necessarily, he does not relinquish nor abandon his position and title
as Vice-Governor by merely becoming an Acting Governor, (not Governor) or by merely
exercising the powers and duties of the higher officer. But the problem is, while in such
capacity, does he temporarily relinquish the powers, functions, duties and responsibilities of
the Vice-Governor, including the power to preside over the sessions of the SP?
Sad to say the new Local Government Code is silent on this matter, yet this query should be
answered in the positive. A Vice-Governor who is concurrently an Acting Governor is
actually a quasi-Governor. This means, that for purposes of exercising his legislative
prerogatives and powers, he is deemed as a non-member of the SP for the time being. By
tradition, the offices of the provincial Governor and Vice-Governor are essentially executive
in nature, whereas plain members of the provincial board perform functions partaking of a
legislative character. This is because the authority vested by law in the provincial boards
involves primarily a delegation of some legislative powers of Congress. 7 Unlike under the
old Code, where the Governor is not only the provincial Chief Executive, 8 but also the
presiding officer of the local legislative body, 9 the new Code delineated the union of the
executive-legislative powers in the provincial, city and municipal levels except in the
Barangay. Under R.A. 7160, the Governor was deprived of the power to preside over the
SP and is no longer considered a member thereof. 10 This is clear from the law, when it
provides that "local legislative power shall be vested in the
11
SP," which is "the legislative body of the province," and enumerates therein membership
consisting of the:
1.) Vice-Governor, as presiding officer,
2.) regular elective SP members,
3.) three elective sectoral representatives, and
4.) those ex-officio members, namely:
Josef Elvin Campos
a.) president of the provincial chapter of the liga ng mga
barangay,
b.) president of the panlalawigang pederasyon ng mga
sangguniang kabataan,
c.) president of the provincial federation of sangguniang
members of municipalities and component cities. 12
None being included in the enumeration, the Governor is deemed excluded applying the
rule in legal hermeneutics that when the law enumerates, the law necessarily excludes. On
the contrary, local executive power in the province is vested alone in the
Governor. 13 Consequently, the union of legislative-executive powers in the office of the
local chief executive under the former Code has been disbanded, so that either department
now comprises different and non-intermingling official personalities with the end in view of
ensuring a better delivery of public service and provide a system of check and balance
between the two.
It has been held that if a Mayor who is out of the contrary is considered "effectively absent",
the Vice-Mayor should discharge the duties of the mayor during the latter's absence. 14 This
doctrine should equally apply to the Vice-Governor since he is similarly situated as the Vice-
Mayor. Although it is difficult to lay down a definite rule as to what constitutes absence, yet
this term should be reasonably construed to mean "effective" absence, 15 that is, one that
renders the officer concerned powerless, for the time being, to discharge the powers and
prerogatives of his office. 16 There is no vacancy whenever the office is occupied by a
legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person
lawfully authorized to assume and exercise at present the duties of the office. 17 By virtue of
the foregoing definition, it can be said that the designation, appointment or assumption of
the Vice-Governor as the Acting Governor creates a corresponding temporary vacancy in
the office of the Vice-Governor during such contingency. Considering the silence of the law
on the matter, the mode of succession provided for permanent vacancies, under the new
Code, in the office of the Vice-Governor may likewise be observed in the event of temporary
vacancy occurring in the same office. 18 This is so because in the eyes of the law, the office
to which he was elected was left barren of a legally qualified person to exercise the duties of
the office of the Vice-Governor.
Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise
the duties of the latter office, since the nature of the duties of the provincial Governor call for
a full-time occupant to discharge them. 19 Such is not only consistent with but also appears
to be the clear rationale of the new Code wherein the policy of performing dual functions in
both offices has already been abandoned. To repeat, the creation of a temporary vacancy in
the office of the Governor creates a corresponding temporary vacancy in the office of the
Vice-Governor whenever the latter acts as Governor by virtue of such temporary vacancy.
This event constitutes an "inability" on the part of the regular presiding officer (Vice
Governor) to preside during the SP sessions, which thus calls for the operation of the
remedy set in Article 49(b) of the Local Government Code — concerning the election of a
temporary presiding officer. The continuity of the Acting Governor's (Vice Governor) powers
as presiding officer of the SP is suspended so long as he is in such capacity. Under Section
49(b), "(i)n the event of the inability of the regular presiding officer to preside at the
sanggunian session, the members present and constituting a quorum shall elect from
among themselves a temporary presiding officer." 20
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur.
Footnotes
1 RTC Decision (Branch 62, Bago City) dated May 8, 1998 penned by Judge
Edgardo L. Catilo, p. 10; Rollo, p. 29. The dispositive portion of the decision reads as
in full as follows:
WHEREFORE, in view of the foregoing consideration, this court hereby declares that
the respondent Negros Occidental Vice Governor Romeo J. Gamboa, Jr., is the
temporarily legally incapacitated or disqualified to preside over the sessions of the
Sangguniang Panlalawigan of Negros Occidental during the period that he is Acting
Provincial Governor of the said province, exercising the powers and performing the
duties of the Governor who is abroad or incapacitated temporarily pursuant to
Section 46 of the Local Government Code of 1991, and prohibiting the respondent
from presiding over the sessions of the Sangguniang Panlalawigan of Negros
Occidental in the future during such circumstance. In such event and under such
Josef Elvin Campos
circumstance, the highest ranking Sangguniang Panlalawigan member of Negros
Occidental is hereby declared to be entitled to preside over the sessions of the said
body in conformity with the rules provided for under Section 44 (a) of the said code.
SO ORDERED.
2 Sec. 49. — Presiding Officer. —
(a) The vice-governor shall be the presiding officer of the Sangguniang
Panlalawigan; the city vice-mayor, of the Sangguniang Panlungsod; the municipal
vice-mayor, of the Sangguniang Bayan; and the Punong-Barangay, of the
Sangguniang Barangay. The presiding officer shall vote only to break a tie.
(b) In the event of the inability of the regular presiding officer to preside at a
sanggunian session, the members present and constituting a quorum shall elect
from among themselves a temporary presiding officer. He shall certify within ten (10)
days from passage of ordinances enacted and resolutions adopted by the
sanggunian in the session over which he temporarily presided.
Sec. 466. Powers, Duties, and Compensation. — (a) The vice-governor shall: . . .
(1) Be the presiding officer of the Sangguniang Panlalawigan and sign all warrants
drawn on the provincial treasury for all expenditures appropriated for the operation of
the Sangguniang Panlalawigan;
3 Sec. 44. Permanent Vacancies in the Officer of the Governor, Vice-Governor,
Mayor, and Vice-Mayor. — If a permanent vacancy occurs in the office of the
governor or mayor, the vice-governor or vice-mayor concerned shall become the
governor or mayor. If a permanent vacancy occurs in the offices of the governor,
vice-governor, mayor, or vice-mayor, the highest ranking Sanggunian member or, in
case of his permanent inability, the second highest ranking Sanggunian member,
shall become the governor, vice-governor, mayor, or vice-mayor, as the case may
be. Subsequent vacancies in the said office shall be filled automatically by the other
Sanggunian members according to their ranking as defined herein.1âwphi1.nêt
4 Sec. 466. Powers, Duties, and Compensation. — (a) The vice-governor shall:
xxx xxx xxx
3.) Assume the office of the governor for the unexpired term of the latter in the event
of permanent vacancy as provided for in Section 44, Book I of this Code;
5 Sec. 46. Temporary Vacancy in the Office of the Local Chief Executive. — (a)
When the governor, city or municipal mayor, or punong barangay is temporarily
incapacitated to perform his duties for physical or legal reasons such as, but not
limited to, leave of absence, travel abroad, and suspension from office, the vice-
governor, city of municipal vice-mayor, or the highest ranking sangguniang barangay
member shall automatically exercise the powers and perform the duties and
functions of the local chief executive concerned, except the power to appoint,
suspend, or dismiss employees which can only be exercised if the period of
temporary incapacity exceeds thirty (30) working days.
Sec. 466. Powers, Duties, and Compensation. — (a) The vice-governor shall:
xxx xxx xxx
4.) Exercise the powers and perform the duties and functions of the governor in
cases of temporary vacancy and provided for in Section 46, Book I of this Code;
6 Batas Pambansa (B.P.) Blg. 337.
7 Felwa v. Salas, 18 SCRA 606.
8 B.P. Blg. 337, Section 203. Provincial Governor as Chief Executive of the
Province. — (1) The Governor shall be the Chief Executive of the provincial
government . . . .
9 B.P. Blg. 337, Section 206 (3) The governor, who shall be the presiding officer of
the sangguniang panlalawigan, shall not be entitled to vote except in case of a tie.
10 B.P. Blg. 337, Sec. 205. Composition. — Each provincial government shall have
a provincial legislature hereinafter known as the sangguniang panlalawigan, upon
which shall be vested the provincial legislative power.
(2) The sangguniang panlalawigan shall be composed of the governor, the vice-
governor, elective members of the said sanggunian, and the presidents of the
katipunang panlalawigan and the kabataang barangay provincial federation who
shall be appointed by the President of the Philippines. (emphasis supplied).
11 Sec. 48. Local Legislative Power. — Local legislative power shall be exercised by
the sangguniang panlalawigan for the province; . . ..
12 B.P. Blg. 337, Section 467. Composition. — (a) The sangguniang panlalawigan,
the legislative body of the province, shall be composed of the vice-governor as
Josef Elvin Campos
presiding officer, the regular sanggunian members, the president of the provincial
chapter of the liga ng mga barangay, the president of the panlalawigang pederasyon
ng mga sangguniang kabataan, the president of the provincial federation of
sanggunian members of municipalities and component cities, and the sectoral
representatives, as members.
(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from
the women; and as shall be determined by the sanggunian concerned within ninety
(90) days prior to the holding of the local elections, one (1) from the agricultural or
industrial workers; and one (1) from the other sectors, including the urban poor,
indigenous cultural communities, or disabled persons.
13 Sec. 465. The Chief Executive: Powers, Duties, Functions, and Compensation. —
(a) The provincial governor, as the chief executive of the provincial government, shall
exercise such powers and perform such duties and functions as provided by this
Code and other laws.
5. Recall
6. Resignation
7. Discipline
(a) Grounds
(b) Jurisdiction
(c) Preventive suspension
(d) Removal
(e) Administrative appeal
Disciplinary Actions
A. Elective Local Officials (Secs. 60-68)
CHAPTER IV: Disciplinary Actions
Section 60. Grounds for Disciplinary Actions. - An elective local official
may be disciplined, suspended, or removed from office on any of the
following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or
dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense
punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days,
except in the case of members of the sangguniang panlalawigan,
sangguniang panlungsod, sangguniang bayan, and sangguniang
barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or
the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other
laws.
An elective local official may be removed from office on the grounds
enumerated above by order of the proper court.
Section 61. Form and Filing of Administrative Complaints. - A verified
complaint against any erring local elective official shall be prepared as
follows:
(a) A complaint against any elective official of a province, a highly
urbanized city, an independent component city or component city shall
be filed before the Office of the President;
(b) A complaint against any elective official of a municipality shall be
filed before the sangguniang panlalawigan whose decision may be
appealed to the Office of the President; and
(c) A complaint against any elective barangay official shall be filed
before the sangguniang panlungsod or sangguniang bayan concerned
whose decision shall be final and executory.
Section 62. Notice of hearing. -
Josef Elvin Campos
(a) Within seven (7) days after the administrative complaint is filed, the
Office of the President or the sanggunian concerned, as the case may
be, shall require the respondent to submit his verified answer within
fifteen (15) days from receipt thereof, and commence the investigation
of the case within ten (10) days after receipt of such answer of the
respondent.
(b) When the respondent is an elective official of a province or highly
urbanized city, such hearing and investigation shall be conducted in
the place where he renders or holds office. For all other local elective
officials, the venue shall be the place where the sanggunian
concerned is located.
(c) However, no investigation shall be held within ninety (90) days
immediately prior to any local election, and no preventive suspension
shall be imposed within the said period. If preventive suspension has
been imposed prior to the 90-day period immediately preceding local
election, it shall be deemed automatically lifted upon the start of
aforesaid period.
Section 63. Preventive Suspension. -
(a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective official of a
province, a highly urbanized or an independent component city;
(2) By the governor, if the respondent is an elective official of a
component city or municipality; or
(3) By the mayor, if the respondent is an elective official of the
barangay.
(b) Preventive suspension may be imposed at any time after the
issues are joined, when the evidence of guilt is strong, and given the
gravity of the offense, there is great probability that the continuance in
office of the respondent could influence the witnesses or pose a threat
to the safety and integrity of the records and other evidence: Provided,
That, any single preventive suspension of local elective officials shall
not extend beyond sixty (60) days: Provided, further, That in the event
that several administrative cases are filed against an elective official,
he cannot be preventively suspended for more than ninety (90) days
within a single year on the same ground or grounds existing and
known at the time of the first suspension.
(c) Upon expiration of the preventive suspension, the suspended
elective official shall be deemed reinstated in office without prejudice
to the continuation of the proceedings against him, which shall be
terminated within one hundred twenty (120) days from the time he was
formally notified of the case against him. However, if the delay in the
proceedings of the case is due to his fault, neglect, or request, other
than the appeal duly filed, the duration of such delay shall not be
counted in computing the time of termination of the case.
(d) Any abuse of the exercise of the power of preventive suspension
shall be penalized as abuse of authority.
Section 64. Salary of Respondent Pending Suspension. - The
respondent official preventively suspended from office shall receive no
salary or compensation during such suspension; but upon subsequent
exoneration and reinstatement, he shall be paid full salary or
compensation including such emoluments accruing during such
suspension.
Section 65. Rights of Respondent. - The respondent shall be
accorded full opportunity to appear and defend himself in person or by
counsel, to confront and cross-examine the witnesses against him,
and to require the attendance of witnesses and the production of
documentary process of subpoena or subpoena duces tecum.
Section 66. Form and Notice of Decision. -
(a) The investigation of the case shall be terminated within ninety (90)
days from the start thereof. Within thirty (30) days after the end of the
investigation, the Office of the President or the sanggunian concerned
shall render a decision in writing stating clearly and distinctly the facts
Josef Elvin Campos
and the reasons for such decision. Copies of said decision shall
immediately be furnished the respondent and all interested parties.
(b) The penalty of suspension shall not exceed the unexpired term of
the respondent or a period of six (6) months for every administrative
offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications
required for the office.
(c) The penalty of removal from office as a result of an administrative
investigation shall be considered a bar to the candidacy of the
respondent for any elective position.
Section 67. Administrative Appeals. - Decisions in administrative
cases may, within thirty (30) days from receipt thereof, be appealed to
the following:
(a) The sangguniang panlalawigan, in the case of decisions of the
sangguniang panlungsod of component cities and the sangguniang
bayan; and
(b) The Office of the President, in the case of decisions of the
sangguniang panlalawigan and the sangguniang panlungsod of highly
urbanized cities and independent component cities.
Decisions of the Office of the President shall be final and executory.
Section 68. Execution Pending Appeal. - An appeal shall not prevent
a decision from becoming final or executory. The respondent shall be
considered as having been placed under preventive suspension during
the pendency of an appeal in the event he wins such appeal. In the
event the appeal results in an exoneration, he shall be paid his salary
and such other emoluments during the pendency of the appeal.
Cases:
Ganzon v. Court of Appeals (200 SCRA 271)
G.R. No. 93252 August 5, 1991
RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, respondents.
G.R. No. 93746 August 5,1991
MARY ANN RIVERA ARTIEDA, petitioner,
vs.
HON. LUIS SANTOS, in his capacity as Secretary of the Department of Local
Government, NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of the
Department of Local Government and SALVADOR CABALUNA JR., respondents.
G.R. No. 95245 August 5,1991
RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, in his capacity as the
Secretary of the Department of Local Government, respondents.
Nicolas P. Sonalan for petitioner in 93252.
Romeo A. Gerochi for petitioner in 93746.
Eugenio Original for petitioner in 95245.
SARMIENTO, J.:
The petitioners take common issue on the power of the President (acting through the
Secretary of Local Government), to suspend and/or remove local officials.
The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of
the Sangguniang Panglunsod thereof (G.R. No. 93746), respectively.
The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in
number, filed against him by various city officials sometime in 1988, on various charges,
among them, abuse of authority, oppression, grave misconduct, disgraceful and immoral
conduct, intimidation, culpable violation of the Constitution, and arbitrary detention. 1 The
personalities involved are Joceleehn Cabaluna, a clerk at the city health office; Salvador
Cabaluna, her husband; Dr. Felicidad Ortigoza, Assistant City Health Officer; Mansueto
Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong, and
Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and Pancho Erbite, a
Josef Elvin Campos
barangay tanod. The complaints against the Mayor are set forth in the opinion of the
respondent Court of Appeals.2 We quote:
x x x x x x x x x
In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City
Health, Office of Iloilo City charged that due to political reasons, having supported
the rival candidate, Mrs. Rosa 0. Caram, the petitioner City Mayor, using as an
excuse the exigency of the service and the interest of the public, pulled her out from
rightful office where her qualifications are best suited and assigned her to a work that
should be the function of a non-career service employee. To make matters worse, a
utility worker in the office of the Public Services, whose duties are alien to the
complainant's duties and functions, has been detailed to take her place. The
petitioner's act are pure harassments aimed at luring her away from her permanent
position or force her to resign.
In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her
to perform task not befitting her position as Assistant City Health Officer of Iloilo City;
that her office was padlocked without any explanation or justification; that her salary
was withheld without cause since April 1, 1988; that when she filed her vacation
leave, she was given the run-around treatment in the approval of her leave in
connivance with Dr. Rodolfo Villegas and that she was the object of a well-
engineered trumped-up charge in an administrative complaint filed by Dr. Rodolfo
Villegas (Annex B).
On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City
and complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and
Eduardo Pefia Pedondo are members of the Sangguniang Panglunsod of the City of
Iloilo. Their complaint arose out from the case where Councilor Larry Ong, whose
key to his office was unceremoniously and without previous notice, taken by
petitioner. Without an office, Councilor Ong had to hold office at Plaza Libertad, The
Vice-Mayor and the other complainants sympathized with him and decided to do the
same. However, the petitioner, together with its fully-armed security men, forcefully
drove them away from Plaza Libertad. Councilor Ong denounced the petitioner's
actuations the following day in the radio station and decided to hold office at the
Freedom Grandstand at Iloilo City and there were so many people who gathered to
witness the incident. However, before the group could reach the area, the petitioner,
together with his security men, led the firemen using a firetruck in dozing water to the
people and the bystanders.
Another administrative case was filed by Pancho Erbite, a barangay tanod,
appointed by former mayor Rosa O. Caram. On March 13, 1988, without the benefit
of charges filed against him and no warrant of arrest was issued, Erbite was arrested
and detained at the City Jail of Iloilo City upon orders of petitioner. In jail, he was
allegedly mauled by other detainees thereby causing injuries He was released only
the following day.3
The Mayor thereafter answered4 and the cases were shortly set for hearing. The opinion of
the Court of Appeals also set forth the succeeding events:
x x x x x x x x x
The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June
20-21, 1988 at the Regional Office of the Department of Local Government in Iloilo
City. Notices, through telegrams, were sent to the parties (Annex L) and the parties
received them, including the petitioner. The petitioner asked for a postponement
before the scheduled date of hearing and was represented by counsel, Atty. Samuel
Castro. The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had
to come all the way from Manila for the two-day hearings but was actually held only
on June 20,1988 in view of the inability and unpreparedness of petitioner's counsel.
The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City.
Again, the petitioner attempted to delay the proceedings and moved for a
postponement under the excuse that he had just hired his counsel. Nonetheless, the
hearing officers denied the motion to postpone, in view of the fact that the parties
were notified by telegrams of the scheduled hearings (Annex M).
In the said hearings, petitioner's counsel cross-examined the complainants and their
witnesses.
Finding probable grounds and reasons, the respondent issued a preventive
suspension order on August 11, 1988 to last until October 11,1988 for a period of
sixty (60) days.
Josef Elvin Campos
Then the next investigation was set on September 21, 1988 and the petitioner again
asked for a postponement to September 26,1988. On September 26, 1988, the
complainants and petitioner were present, together with their respective counsel.
The petitioner sought for a postponement which was denied. In these hearings which
were held in Mala the petitioner testified in Adm. Case No. C-10298 and 10299.
The investigation was continued regarding the Malabor case and the complainants
testified including their witnesses.
On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement
of the October 24, 1988 hearing to November 7 to 11, 1988 which was granted.
However, the motion for change of venue as denied due to lack of funds. At the
hearing on November 7, 1988, the parties and counsel were present. Petitioner
reiterated his motion to change venue and moved for postponement anew. The
counsel discussed a proposal to take the deposition of witnesses in Iloilo City so the
hearing was indefinitely postponed. However, the parties failed to come to terms and
after the parties were notified of the hearing, the investigation was set to December
13 to 15, 1988.
The petitioner sought for another postponement on the ground that his witnesses
were sick or cannot attend the investigation due to lack of transportation. The motion
was denied and the petitioner was given up to December 14, 1988 to present his
evidence.
On December 14,1988, petitioner's counsel insisted on his motion for postponement
and the hearing officers gave petitioner up to December 15, 1988 to present his
evidence. On December 15, 1988, the petitioner failed to present evidence and the
cases were considered submitted for resolution.
In the meantime, a prima facie evidence was found to exist in the arbitrary detention
case filed by Pancho Erbite so the respondent ordered the petitioner's second
preventive suspension dated October 11, 1988 for another sixty (60) days. The
petitioner was able to obtain a restraining order and a writ of preliminary injunction in
the Regional Trial Court, Branch 33 of Iloilo City. The second preventive suspension
was not enforced.5
Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition
against the respondent Secretary of Local Government (now, Interior) in the Regional Trial
Court, Iloilo City, where he succeeded in obtaining a writ of preliminary injunction. Presently,
he instituted CA-G.R. SP No. 16417, an action for prohibition, in the respondent Court of
Appeals.
Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively
suspending Mayor Ganzon for another sixty days, the third time in twenty months, and
designating meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor
Ganzon commenced CA-G.R. SP No. 20736 of the Court of Appeals, a petition for
prohibition,6 (Malabor it is to be noted, is one of the complainants, and hence, he is
interested in seeing Mayor Ganzon ousted.)
On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP
No. 16417. On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R. SP No.
20736. In a Resolution dated January 24, 1990, it issued a Resolution certifying the petition
of Mary Ann Artieda, who had been similary charged by the respondent Secretary, to this
Court.
On June 26,1990, we issued a Temporary Restraining Order, barring the respondent
Secretary from implementing the suspension orders, and restraining the enforcement of the
Court of Appeals' two decisions.
In our Resolution of November 29, 1990, we consolidated all three cases. In our
Resolutions of January 15, 1991, we gave due course thereto.
Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local
Government in hearing the ten cases against him, had denied him due process of law and
that the respondent Secretary had been "biased, prejudicial and hostile" towards
him7 arising from his (Mayor Ganzon's) alleged refusal to join the Laban ng Demokratikong
Pilipino party8 and the running political rivalry they maintained in the last congressional and
local elections;9 and his alleged refusal to operate a lottery in Iloilo City. 10 He also alleges
that he requested the Secretary to lift his suspension since it had come ninety days prior to
an election (the barangay elections of November 14, 1988), 11 notwithstanding which, the
latter proceeded with the hearing and meted out two more suspension orders of the
aforementioned cases.12 He likewise contends that he sought to bring the cases to Iloilo City
(they were held in Manila) in order to reduce the costs of proceeding, but the Secretary
rejected his request.13 He states that he asked for postponement on "valid and
Josef Elvin Campos
justifiable"14 grounds, among them, that he was suffering from a heart ailment which
required confinement; that his "vital" 15 witness was also hospitalized16 but that the latter
unduly denied his request.17
Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of
Local Government is devoid, in any event, of any authority to suspend and remove local
officials, an argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No.
93746).
As to Mayor Ganzon's charges of denial of due process, the records do not show very
clearly in what manner the Mayor might have been deprived of his rights by the respondent
Secretary. His claims that he and Secretary Luis-Santos were (are) political rivals and that
his "persecution" was politically motivated are pure speculation and although the latter does
not appear to have denied these contentions (as he, Mayor Ganzon, claims), we can not
take his word for it the way we would have under less political circumstances, considering
furthermore that "political feud" has often been a good excuse in contesting complaints.
The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had
attempted to seduce him to join the administration party and to operate a lottery in Iloilo
City. Again, although the Secretary failed to rebut his allegations, we can not accept them,
at face value, much more, as judicial admissions as he would have us accept them 18 for the
same reasons above-stated and furthermore, because his say so's were never corroborated
by independent testimonies. As a responsible public official, Secretary Santos, in pursuing
an official function, is presumed to be performing his duties regularly and in the absence of
contrary evidence, no ill motive can be ascribed to him.
As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer
the hearing on account of the ninety-day ban prescribed by Section 62 of Batas Blg. 337,
the Court finds the question to be moot and academic since we have in fact restrained the
Secretary from further hearing the complaints against the petitioners. 19
As to his request, finally, for postponements, the Court is afraid that he has not given any
compelling reason why we should overturn the Court of Appeals, which found no convincing
reason to overrule Secretary Santos in denying his requests. Besides, postponements are a
matter of discretion on the part of the hearing officer, and based on Mayor Ganzon's above
story, we are not convinced that the Secretary has been guilty of a grave abuse of
discretion.
The Court can not say, under these circumstances, that Secretary Santos' actuations
deprived Mayor Ganzon of due process of law.
We come to the core question: Whether or not the Secretary of Local Government, as the
President's alter ego, can suspend and/or remove local officials.
It is the petitioners' argument that the 1987 Constitution 20 no longer allows the President, as
the 1935 and 1973 Constitutions did, to exercise the power of suspension and/or removal
over local officials. According to both petitioners, the Constitution is meant, first, to
strengthen self-rule by local government units and second, by deleting the phrase 21 as may
be provided by law to strip the President of the power of control over local governments. It is
a view, so they contend, that finds support in the debates of the Constitutional Commission.
The provision in question reads as follows:
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.22
It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:
Sec. 10. The President shall have control of all the executive departments, bureaus,
or offices, exercise general supervision over all Local governments as may be
provided by law, and take care that the laws be faithfully executed. 23
The petitioners submit that the deletion (of "as may be provided by law") is significant, as
their argument goes, since: (1) the power of the President is "provided by law" and (2)
hence, no law may provide for it any longer.
It is to be noted that in meting out the suspensions under question, the Secretary of Local
Government acted in consonance with the specific legal provisions of Batas Blg. 337, the
Local Government Code, we quote:
Sec. 62. Notice of Hearing. — Within seven days after the complaint is filed, the
Minister of local Government, or the sanggunian concerned, as the case may be,
shall require the respondent to submit his verified answer within seven days from
receipt of said complaint, and commence the hearing and investigation of the case
within ten days after receipt of such answer of the respondent. No investigation shall
Josef Elvin Campos
be held within ninety days immediately prior to an election, and no preventive
suspension shall be imposed with the said period. If preventive suspension has been
imposed prior to the aforesaid period, the preventive suspension shall be lifted. 24
Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by
the Minister of Local Government if the respondent is a provincial or city official, by
the provincial governor if the respondent is an elective municipal official, or by the
city or municipal mayor if the respondent is an elective barangay official.
(2) Preventive suspension may be imposed at any time after the issues are joined,
when there is reasonable ground to believe that the respondent has committed the
act or acts complained of, when the evidence of culpability is strong, when the
gravity of the offense so warrants, or when the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and integrity
of the records and other evidence. In all cases, preventive suspension shall not
extend beyond sixty days after the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed reinstated
in office without prejudice to the continuation of the proceedings against him until its
termination. However ' if the delay in the proceedings of the case is due to his fault,
neglect or request, the time of the delay shall not be counted in computing the time
of suspension.25
The issue, as the Court understands it, consists of three questions: (1) Did the 1987
Constitution, in deleting the phrase "as may be provided by law" intend to divest the
President of the power to investigate, suspend, discipline, and/or remove local officials? (2)
Has the Constitution repealed Sections 62 and 63 of the Local Government Code? (3) What
is the significance of the change in the constitutional language?
It is the considered opinion of the Court that notwithstanding the change in the constitutional
language, the charter did not intend to divest the legislature of its right or the President of
her prerogative as conferred by existing legislation to provide administrative sanctions
against local officials. It is our opinion that the omission (of "as may be provided by law")
signifies nothing more than to underscore local governments' autonomy from congress and
to break Congress' "control" over local government affairs. The Constitution did not,
however, intend, for the sake of local autonomy, to deprive the legislature of all authority
over municipal corporations, in particular, concerning discipline.
Autonomy does not, after all, contemplate making mini-states out of local government units,
as in the federal governments of the United States of America (or Brazil or Germany),
although Jefferson is said to have compared municipal corporations euphemistically to
"small republics."26 Autonomy, in the constitutional sense, is subject to the guiding star,
though not control, of the legislature, albeit the legislative responsibility under the
Constitution and as the "supervision clause" itself suggest-is to wean local government units
from over-dependence on the central government.
It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but
subject to, among other things, the passage of a local government code, 27 a local tax
law,28 income distribution legislation,29 and a national representation law, 30 and
measures31 designed to realize autonomy at the local level. It is also noteworthy that in spite
of autonomy, the Constitution places the local government under the general supervision of
the Executive. It is noteworthy finally, that the Charter allows Congress to include in the
local government code provisions for removal of local officials, which suggest that Congress
may exercise removal powers, and as the existing Local Government Code has done,
delegate its exercise to the President. Thus:
Sec. 3. The Congress shall enact a local government code which shall provide for a
more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units their powers,
responsibilities and resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of local
officials, and all other matters relating to the organization and operation of the local
units.32
As hereinabove indicated, the deletion of "as may be provided by law" was meant to
stress, sub silencio, the objective of the framers to strengthen local autonomy by severing
congressional control of its affairs, as observed by the Court of Appeals, like the power of
local legislation.33 The Constitution did nothing more, however, and insofar as existing
legislation authorizes the President (through the Secretary of Local Government) to proceed
against local officials administratively, the Constitution contains no prohibition.
Josef Elvin Campos
The petitioners are under the impression that the Constitution has left the President mere
supervisory powers, which supposedly excludes the power of investigation, and denied her
control, which allegedly embraces disciplinary authority. It is a mistaken impression
because legally, "supervision" is not incompatible with disciplinary authority as this Court
has held,34 thus:
x x x x x x x x x
It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this
Court had occasion to discuss the scope and extent of the power of supervision by
the President over local government officials in contrast to the power of control given
to him over executive officials of our government wherein it was emphasized that the
two terms, control and supervision, are two different things which differ one from the
other in meaning and extent. Thus in that case the Court has made the following
digression: "In administration law supervision means overseeing or the power or
authority of an officer to see that subordinate officers perform their duties. If the latter
fail or neglect to fulfill them the former may take such action or step as prescribed by
law to make them perform their duties. Control, on the other hand, means the power
of an officer to alter or modify or nullify of 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." But from this pronouncement it cannot be reasonably inferred that
the power of supervision of the President over local government officials does not
include the power of investigation when in his opinion the good of the public service
so requires, as postulated in Section 64(c) of the Revised Administrative Code. ... 35
x x x x x x x x x
"Control" has been defined as "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 test of the latter." 36 "Supervision" on the other hand means
"overseeing or the power or authority of an officer to see that subordinate officers perform
their duties.37 As we held,38 however, "investigating" is not inconsistent with "overseeing",
although it is a lesser power than "altering". The impression is apparently exacerbated by
the Court's pronouncements in at least three cases, Lacson v. Roque,39 Hebron v.
Reyes,40 and Mondano v. Silvosa,41 and possibly, a fourth one, Pelaez v. Auditor
General.42 In Lacson, this Court said that the President enjoyed no control powers but only
supervision "as may be provided by law," 43 a rule we reiterated in Hebron, and Mondano.
In Pelaez, we stated that the President "may not . . . suspend an elective official of a regular
municipality or take any disciplinary action against him, except on appeal from a decision of
the corresponding provincial board." 44 However,
neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from
exercising acts of disciplinary authority because she did not exercise control powers, but
because no law allowed her to exercise disciplinary authority. Thus, according to Lacson:
The contention that the President has inherent power to remove or suspend
municipal officers is without doubt not well taken. Removal and suspension of public
officers are always controlled by the particular law applicable and its proper
construction subject to constitutional limitations. 45
In Hebron we stated:
Accordingly, when the procedure for the suspension of an officer is specified by law,
the same must be deemed mandatory and adhered to strictly, in the absence of
express or clear provision to the contrary-which does not et with respect to municipal
officers ...46
In Mondano, the Court held:
... The Congress has expressly and specifically lodged the provincial supervision
over municipal officials in the provincial governor who is authorized to "receive and
investigate complaints made under oath against municipal officers for neglect of
duty, oppression, corruption or other form of maladministration of office, and
conviction by final judgment of any crime involving moral turpitude." And if the
charges are serious, "he shall submit written charges touching the matter to the
provincial board, furnishing a copy of such charges to the accused either personally
or by registered mail, and he may in such case suspend the officer (not being the
municipal treasurer) pending action by the board, if in his opinion the charge by one
affecting the official integrity of the officer in question." Section 86 of the Revised
Administration Code adds nothing to the power of supervision to be exercised by the
Department Head over the administration of ... municipalities ... . If it be construed
that it does and such additional power is the same authority as that vested in the
Department Head by section 79(c) of the Revised Administrative Code, then such
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additional power must be deemed to have been abrogated by Section 110(l), Article
VII of the Constitution.47
x x x x x x x x x
In Pelaez, we stated that the President can not impose disciplinary measures on local
officials except on appeal from the provincial board pursuant to the Administrative Code. 48
Thus, in those case that this Court denied the President the power (to suspend/remove) it
was not because we did not think that the President can not exercise it on account of his
limited power, but because the law lodged the power elsewhere. But in those cases ii which
the law gave him the power, the Court, as in Ganzon v. Kayanan, found little difficulty in
sustaining him.49
The Court does not believe that the petitioners can rightfully point to the debates of the
Constitutional Commission to defeat the President's powers. The Court believes that the
deliberations are by themselves inconclusive, because although Commissioner Jose
Nolledo would exclude the power of removal from the President, 50 Commissioner Blas Ople
would not.51
The Court is consequently reluctant to say that the new Constitution has repealed the Local
Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not
incompatible terms and one may stand with the other notwithstanding the stronger
expression of local autonomy under the new Charter. We have indeed held that in spite of
the approval of the Charter, Batas Blg. 337 is still in force and effect. 52
As the Constitution itself declares, local autonomy means "a more responsive and
accountable local government structure instituted through a system of
decentralization."53 The Constitution as we observed, does nothing more than to break up
the monopoly of the national government over the affairs of local governments and as put
by political adherents, to "liberate the local governments from the imperialism of Manila."
Autonomy, however, is not meant to end the relation of partnership and inter-dependence
between the central administration and local government units, or otherwise, to user in a
regime of federalism. The Charter has not taken such a radical step. Local governments,
under the Constitution, are subject to regulation, however limited, and for no other purpose
than precisely, albeit paradoxically, to enhance self- government.
As we observed in one case,54 decentralization means devolution of national administration
but not power to the local levels. Thus:
Now, autonomy is either decentralization of administration or decentralization of
power. There is decentralization of administration when the central government
delegates administrative powers to political subdivisions in order to broaden the base
of government power and in the process to make local governments "more
responsive and accountable," and "ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of national
development and social progress." At the same time, it relieves the central
government of the burden of managing local affairs and enables it to concentrate on
national concerns. The President exercises "general supervision" over them, but only
to "ensure that local affairs are administered according to law." He has no control
over their acts in the sense that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political
power in the favor of local governments units declared to be autonomous, In that
case, the autonomous government is free to chart its own destiny and shape its
future with minimum intervention from central authorities. According to a
constitutional author, decentralization of power amounts to "self-immolation," since in
that event, the autonomous government becomes accountable not to the central
authorities but to its constituency.55
The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another
matter. What bothers the Court, and what indeed looms very large, is the fact that since the
Mayor is facing ten administrative charges, the Mayor is in fact facing the possibility of 600
days of suspension, in the event that all ten cases yield prima facie findings. The Court is
not of course tolerating misfeasance in public office (assuming that Mayor Ganzon is guilty
of misfeasance) but it is certainly another question to make him serve 600 days of
suspension, which is effectively, to suspend him out of office. As we held: 56
2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of
office does not expire until 1986. Were it not for this information and the suspension
decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices
Act, he would have been all this while in the full discharge of his functions as such
municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has
been unable to. it is a basic assumption of the electoral process implicit in the right of
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suffrage that the people are entitled to the services of elective officials of their
choice. For misfeasance or malfeasance, any of them could, of course, be
proceeded against administratively or, as in this instance, criminally. In either case,
Ms culpability must be established. Moreover, if there be a criminal action, he is
entitled to the constitutional presumption of innocence. A preventive suspension may
be justified. Its continuance, however, for an unreasonable length of time raises a
due process question. For even if thereafter he were acquitted, in the meanwhile his
right to hold office had been nullified. Clearly, there would be in such a case an
injustice suffered by him. Nor is he the only victim. There is injustice inflicted likewise
on the people of Lianga They were deprived of the services of the man they had
elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the
protracted continuance of this preventive suspension had outrun the bounds of
reason and resulted in sheer oppression. A denial of due process is thus quite
manifest. It is to avoid such an unconstitutional application that the order of
suspension should be lifted.57
The plain truth is that this Court has been ill at ease with suspensions, for the above
reasons,58 and so also, because it is out of the ordinary to have a vacancy in local
government. The sole objective of a suspension, as we have held, 59 is simply "to prevent
the accused from hampering the normal cause of the investigation with his influence and
authority over possible witnesses"60 or to keep him off "the records and other evidence. 61
It is a means, and no more, to assist prosecutors in firming up a case, if any, against an
erring local official. Under the Local Government Code, it can not exceed sixty days, 62 which
is to say that it need not be exactly sixty days long if a shorter period is otherwise sufficient,
and which is also to say that it ought to be lifted if prosecutors have achieved their purpose
in a shorter span.
Suspension is not a penalty and is not unlike preventive imprisonment in which the accused
is held to insure his presence at the trial. In both cases, the accused (the respondent)
enjoys a presumption of innocence unless and until found guilty.
Suspension finally is temporary and as the Local Government Code provides, it may be
imposed for no more than sixty days. As we held, 63 a longer suspension is unjust and
unreasonable, and we might add, nothing less than tyranny.
As we observed earlier, imposing 600 days of suspension which is not a remote possibility
Mayor Ganzon is to all intents and purposes, to make him spend the rest of his term in
inactivity. It is also to make, to all intents and purposes, his suspension permanent.
It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not
been proven. Worse, any absolution will be for naught because needless to say, the length
of his suspension would have, by the time he is reinstated, wiped out his tenure
considerably.
The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to
see that justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon
successive suspensions when apparently, the respondent Secretary has had sufficient time
to gather the necessary evidence to build a case against the Mayor without suspending him
a day longer. What is intriguing is that the respondent Secretary has been cracking down,
so to speak, on the Mayor piecemeal apparently, to pin him down ten times the pain, when
he, the respondent Secretary, could have pursued a consolidated effort.
We reiterate that we are not precluding the President, through the Secretary of Interior from
exercising a legal power, yet we are of the opinion that the Secretary of Interior is exercising
that power oppressively, and needless to say, with a grave abuse of discretion.
The Court is aware that only the third suspension is under questions, and that any talk of
future suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has
been made to serve a total of 120 days of suspension and the possibility of sixty days more
is arguably around the corner (which amounts to a violation of the Local Government Code
which brings to light a pattern of suspensions intended to suspend the Mayor the rest of his
natural tenure. The Court is simply foreclosing what appears to us as a concerted effort of
the State to perpetuate an arbitrary act.
As we said, we can not tolerate such a state of affairs.
We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third
suspension and lifting, for the purpose, the Temporary Restraining Order earlier issued.
Insofar as the seven remaining charges are concerned, we are urging the Department of
Local Government, upon the finality of this Decision, to undertake steps to expedite the
same, subject to Mayor Ganzon's usual remedies of appeal, judicial or administrative, or
certiorari, if warranted, and meanwhile, we are precluding the Secretary from meting out
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further suspensions based on those remaining complaints, notwithstanding findings
of prima facie evidence.
In resume the Court is laying down the following rules:
1. Local autonomy, under the Constitution, involves a mere decentralization of
administration, not of power, in which local officials remain accountable to the central
government in the manner the law may provide;
2. The new Constitution does not prescribe federalism;
3. The change in constitutional language (with respect to the supervision clause) was meant
but to deny legislative control over local governments; it did not exempt the latter from
legislative regulations provided regulation is consistent with the fundamental premise of
autonomy;
4. Since local governments remain accountable to the national authority, the latter may, by
law, and in the manner set forth therein, impose disciplinary action against local officials;
5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not
signify "control" (which the President does not have);
6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but
may no longer be suspended for the offenses he was charged originally; provided:
a) that delays in the investigation of those charges "due to his fault, neglect or
request, (the time of the delay) shall not be counted in computing the time of
suspension. [Supra, sec. 63(3)]
b) that if during, or after the expiration of, his preventive suspension, the petitioner
commits another or other crimes and abuses for which proper charges are filed
against him by the aggrieved party or parties, his previous suspension shall not be a
bar to his being preventively suspended again, if warranted under subpar. (2),
Section 63 of the Local Government Code.
WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary
Restraining Order issued is LIFTED.1âwphi1 The suspensions of the petitioners are
AFFIRMED, provided that the petitioner, Mayor Rodolfo Ganzon, may not be made to serve
future suspensions on account of any of the remaining administrative charges pending
against him for acts committed prior to August 11, 1988. The Secretary of Interior is
ORDERED to consolidate all such administrative cases pending against Mayor Ganzon.
The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED.
No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ concur.
Joson v. Torres (290 SCRA 279)

G.R. No. 131255 May 20, 1998
HON. EDUARDO NONATO JOSON, in his capacity as the Governor of the Province of
Nueva Ecija, petitioner,
vs.
EXECUTIVE SECRETARY RUBEN D. TORRES, the DEPARTMENT OF THE INTERIOR
& LOCAL GOVERNMENTS, represented by SECRETARY ROBERT Z. BARBERS and
UNDERSECRETARY MANUEL R. SANCHEZ, MR. OSCAR C. TINIO, in his capacity as
Provincial Vice-Governor of Nueva Ecija, and MR. LORETO P. PANGILINAN, MR.
CRISPULO S. ESGUERRA, MS. SOLITA C. SANTOS, MR. VICENTE C. PALILIO, and
MR. NAPOLEON G. INTERIOR, in their capacity as Provincial Board Members of
Nueva Ecija, respondents.
PUNO, J.:
The case at bar involves the validity of the suspension from office of petitioner Eduardo
Nonato Joson as Governor of the province of Nueva Ecija. Private respondent Oscar C.
Tinio is the Vice-Governor of said province while private respondents Loreto P. Pangilinan,
Crispulo S. Esguerra, Solita C. Santos, Vicente C. Palilio and Napoleon Interior are
members of the Sangguniang Panlalawigan.
On September 17, 1996, private respondents filed with the Office of the President a letter-
complaint dated September 13, 1997 charging petitioner with grave misconduct and abuse
of authority. Private respondents alleged that in the morning of September 12, 1996, they
were at the session hall of the provincial capitol for a scheduled session of the Sangguniang
Panlalawigan when petitioner belligerently barged into the Hall; petitioner angrily kicked the
door and chairs in the Hall and uttered threatening words at them; close behind petitioner
were several men with long and short firearms who encircled the area. Private respondents
Josef Elvin Campos
claim that this incident was an offshoot of their resistance to a pending legislative measure
supported by petitioner that the province of Nueva Ecija obtain a loan of P150 million from
the Philippine National Bank; that petitioner's acts were intended to harass them into
approving this loan; that fortunately, no session of the Sangguniang Panlalawigan was held
that day for lack of quorum and the proposed legislative measure was not considered; that
private respondents opposed the loan because the province of Nueva Ecija had an
unliquidated obligation of more than P70 million incurred without prior authorization from the
Sangguniang Panlalawigan; that the provincial budget officer and treasurer had earlier
disclosed that the province could not afford to contract another obligation; that petitioner's
act of barging in and intimidating private respondents was a serious insult to the integrity
and independence of the Sangguniang Panlalawigan; and that the presence of his private
army posed grave danger to private respondents' lives and safety. Private respondents
prayed for the suspension or removal of petitioner; for an emergency audit of the provincial
treasury of Nueva Ecija; and for the review of the proposed loan in light of the financial
condition of the province, to wit:
In this regard, we respectfully request for the following assistance from your good
office:
1. To immediately suspend Governor N. [sic] Joson considering the actual dangers
that we are facing now, and provide adequate police security detail for the
Sangguniang Panlalawigan of Nueva Ecija. Should the evidence warrant after
investigation, to order his removal from office.
2. To conduct an emergency audit of the provincial treasury of Nueva Ecija by the
auditors from the Commission on Audit Central Office with adequate police security
assistance. Should the evidence so warrant, to file necessary charges against
responsible and accountable officers.
3. To advise the Philippine National Bank to review the capability of the province of
Nueva Ecija to secure more loans and the feasibility of the same in the light of the
present financial condition of the province. Or if said loan will be contrary to sound
banking practice, recommend its disapproval.1
The letter-complaint was submitted with the joint affidavit of Elnora Escombien and
Jacqueline Jane Perez, two (2) employees of the Sangguniang Panlalawigan who
witnessed the incident. The letter was endorsed by Congressmen Eleuterio Violago and
Pacifico Fajardo of the Second and Third Districts of Nueva Ecija, former Congressman
Victorio Lorenzo of the Fourth District, and Mayor Placido Calma, President of the Mayors'
League of said province.2
The President acted on the complaint by writing on its margin the following:
17 Sep 96
To: SILG info Exec. Sec. and Sec. of Justice:
1. Noted. There appears no justification for the use of force, intimidation or armed
followers in the situation of 12 Sep at the Session Hall. 2. Take appropriate
preemptive and investigative actions. 3 BREAK NOT the PEACE.
FIDEL V. RAMOS
(Signed).3
President Ramos noted that the situation of "12 Sep at the Session Hall," i.e., the refusal of
the members of the Sangguniang Panlalawigan to approve the proposed loan, did not
appear to justify "the use of force, intimidation or armed followers." He thus instructed the
then Secretary of the Interior and Local Governments (SILG) Robert Barbers to "[t]ake
appropriate preemptive and investigative actions," but to "[b]reak not the peace."
The letter-complaint together with the President's marginal notes were sent to Secretary
Robert Z. Barbers on September 20, 1996. Acting upon the instructions of the President,
Secretary Barbers notified petitioner of the case against him 4 and attached to the notice a
copy of the complaint and its annexes. In the same notice, Secretary Barbers
directed petitioner "to submit [his] verified/sworn answer thereto, not a motion to
dismiss, together with such documentary evidence that [he] has in support thereof,
within fifteen (15) days from receipt. 5
Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija and summoned
petitioner and private respondents to a conference to settle the controversy. The
parties entered into an agreement whereby petitioner promised to maintain peace
and order in the province while private respondents promised to refrain from filing
cases that would adversely affect their peaceful co-existence. 6
The peace agreement was not respected by the parties and the private respondents
reiterated their letter-complaint. Petitioner was again ordered to file his answer to the
letter-complaint within fifteen days from receipt. Petitioner received a copy of this
Josef Elvin Campos
order on November 13, 1996. On the same day, petitioner requested for an extension
of thirty (30) days to submit his answer because he was "trying to secure the
services of legal counsel experienced in administrative law practice. 7 The Department
of the Interior and Local Government (DILG), acting through Director Almario de los
Santos, Officer-In-Charge of the Legal Service, granted the motion, with the thirty-day
extension to be reckoned, however, from November 13, 1996, i.e., the day petitioner
received the order to answer.8
In a letter dated December 9, 1996, petitioner moved for another extension of thirty
(30) days to file his answer. He stated that he had already sent letters to various law
firms in Metro Manila but that he had not yet contracted their services; that the
advent of the Christmas season kept him busy with "numerous and inevitable official
engagements."9 The DILG granted the request for extension "for the last time up to
January 13 only."10
On January 7, 1997, petitioner requested for another extension of thirty (30) days to
file his answer. According to him, the Christmas season kept him very busy and
preoccupied with his numerous official engagements; that the law firms he invited to
handle his case have favorably replied but that he needed time to confer with them
personally; and that during this period, he, with the help of his friends, was exploring
the possibility of an amicable settlement of the case. 11 The DILG granted petitioner's
request "for the last time" but gave him an extension of only ten (10) days from
January 13, 1997 to January 23, 1997. The DILG also informed him that his "failure to
submit answer will be considered a waiver and that the plaintiff [shall] be allowed to
present his evidence ex parte."12
Petitioner moved for reconsideration of the order. He reiterated his prayer for an
extension of thirty (30) days on the following grounds: (a) that he was still in the
process of choosing competent and experienced counsel; (b) that some law firms
refused to accept his case because it was perceived to be politically motivated; and
(c) the multifarious activities, appointments and official functions of his office
hindered his efforts to secure counsel of
choice.13
Three months later, on April 22, 1997, Undersecretary Manuel Sanchez, then Acting
Secretary of the DILG, issued an order declaring petitioner in default and to have
waived his right to present evidence. Private respondents were ordered to present
their evidence ex-parte. The order reads as follows:
ORDER
It appearing that respondent failed to submit his answer to the complaint
despite the grant to him of three (3) extensions, such unreasonable failure is
deemed a waiver of his right to present evidence in his behalf pursuant to
Section 4, Rule 4 of Administrative Order No. 23 dated December 17, 1992, as
amended.
Respondent is hereby declared in default, meanwhile, complainants are
directed to present their evidence ex-parte. However, considering the
prohibition on the conduct of administrative investigation due to the
forthcoming barangay elections, complainants will be notified on the date after
the barangay election for them to present their evidence.
SO ORDERED.14
Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar &
Asuncion, representing petitioner, filed with the DILG an "Entry of Appearance with
Motion for Time to File Answer Ad Cautelam."
Petitioner received a copy of the order of default on May 2, 1997. Through counsel,
he moved for reconsideration. On May 19, 1997, Undersecretary Sanchez
reconsidered the order of default in the interest of justice. He noted the appearance
of petitioner's counsel and gave petitioner "for the last time" fifteen (15) days from
receipt to file his answer.15
On June 23, 1997, Undersecretary Sanchez issued an order stating that petitioner's
counsel, whose office is in Manila, should have received a copy of the May 19, 1997
order ten days after mailing on May 27, 1997. Since petitioner still failed to file his
answer, he was deemed to have waived his right to present evidence in his behalf.
Undersecretary Sanchez reinstated the order of default and directed private
respondents to present their evidence ex-parte on July 15, 1997.16
The following day, June 24, 1997, petitioner, through counsel, filed a "Motion to
Dismiss." Petitioner alleged that the letter-complaint was not verified on the day it
Josef Elvin Campos
was filed with the Office of the President; and that the DILG had no jurisdiction over
the case and no authority to require him, to answer the complaint.
On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for Reconsideration" of
the order of June 23, 1997 reinstating the order of default. Petitioner also prayed that
the hearing on the merits of the case be held in abeyance until after the "Motion to
Dismiss" shall have been resolved.
On July 11, 1997, on recommendation of Secretary Barbers, Executive Secretary
Ruben Torres issued an order, by authority of the President, placing petitioner under
preventive suspension for sixty (60) days pending investigation of the charges
against him.17
Secretary Barbers directed the Philippine National Police to assist in the
implementation of the order of preventive suspension. In petitioner's stead, Secretary
Barbers designated Vice-Governor Oscar Tinio as Acting Governor until such time as
petitioner's temporary legal incapacity shall have ceased to exist. 18
Forthwith, petitioner filed a petition for certiorari and prohibition with the Court of
Appeals challenging the order of preventive suspension and the order of default. 19
Meanwhile, the proceedings before the DILG continued. On August 20, 1997,
Undersecretary Sanchez issued an order denying petitioner's "Motion to Dismiss"
and " Urgent Ex-Parte Motion for Reconsideration." In the same order, he required
the parties to submit their position papers within an inextendible period of ten days
from receipt after which the case shall be deemed submitted for resolution, to wit:
WHEREFORE, for lack of merit, both motions are denied. However, for this
office to have a better appreciation of the issues raised in the instant case, the
parties, through their respective counsels are hereby directed to submit their
position papers within a period of ten (10) days from receipt hereof, which
period is inextendible, after which the case is deemed submitted for
resolution.20
On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of
Preventive Suspension." On September 10, 1997, petitioner followed this with a
"Motion to Lift Default Order and Admit Answer Ad Cautelam."21 Attached to the
motion was the "Answer Ad Cautelam".22 and sworn statements of his witnesses. On
the other hand, complainants (private respondents herein) manifested that they were
submitting the case for decision based on the records, the complaint and affidavits
of their witnesses.23
In his Answer Ad Cautelam, petitioner alleged that in the morning of September 12,
1996, while he was at his district office in the town of Munoz, he received a phone call
from Sangguniang Panlalawigan member Jose del Mundo. Del Mundo, who belonged
to petitioner's political party, informed him that Vice-Governor Tinio was enraged at
the members of the Sangguniang Panlalawigan who were in petitioner's party
because they refused to place on the agenda the ratification of the proposed P150
million loan of the province. Petitioner repaired to the provincial capitol to advise his
party-mates on their problem and at the same time attend to his official functions.
Upon arrival, he went to the Session Hall and asked the members present where
Vice-Governor Tinio was. However, without waiting for their reply, he left the Hall and
proceeded to his office.
Petitioner claimed that there was nothing in his conduct that threatened the members
of the Sangguniang Panlalawigan or caused alarm to the employees. He said that like
Vice-Governor Tinio, he was always accompanied by his official security escorts
whenever he reported for work. He also alleged that the joint affidavit of Elnora
Escombien and Jacqueline Jane Perez was false. Escombien was purportedly not
inside the session hall during the incident but was at her desk at the office and could
not in any way have seen petitioner in the hall. To attest to the truth of his
allegations, petitioner submitted three (3) joint affidavits — two (2) affidavits
executed by six (6) and ten (10) employees, respectively, of the provincial
government, and a third by four members of the Sangguniang Panlalawigan. 24
On September 11, 1997, petitioner filed an "Urgent Motion for Reconsideration" of the
order of August 20, 1997 denying his motion to dismiss. The "Urgent Motion for
Reconsideration" was rejected by Undersecretary Sanchez on October 8, 1997.
Undesecretary Sanchez, however, granted the "Motion to Lift Default Order and to
Admit Answer Ad Cautelam" and admitted the "Answer Ad Cautelam" as petitioner's
position paper pursuant to the order of August 20, 1997. 25
On October 15, 1997, petitioner filed a "Motion to Conduct Formal Investigation."
Petitioner prayed that a formal investigation of his case be conducted pursuant to the
Josef Elvin Campos
provisions of the Local Government Code of 1991 and Rule 7 of Administrative Order
No. 23; and that this be held at the province of Nueva Ecija. 26 On October 29, 1997,
petitioner submitted a "Manifestation and Motion" before the DILG reiterating his
right to a formal investigation.
In the meantime, on October 24, 1997, the Court of Appeals dismissed petitioner's
petition.27
Hence this recourse.
The proceedings before the DILG continued however. In an order dated November 11,
1997, the DILG denied petitioner's "Motion to Conduct Formal Investigation"
declaring that the submission of position papers substantially complies with the
requirements of procedural due process in administrative proceedings. 28
A few days after filing the petition before this Court, petitioner filed a "Motion for
Leave to File Herein Incorporated Urgent Motion for the Issuance of a Temporary
Restraining Order and/or a Writ of Preliminary Injunction." Petitioner alleged that
subsequent to the institution of this petition, the Secretary of the Interior and Local
Governments rendered a resolution on the case finding him guilty of the offenses
charged.29 His finding was based on the position papers and affidavits of witnesses
submitted by the parties. The DILG Secretary found the affidavits of complainants'
witnesses to be "more natural, reasonable and probable" than those of herein
petitioner Joson's.30
On January 8, 1998, the Executive Secretary, by authority of the President, adopted
the findings and recommendation of the DILG Secretary. He imposed on petitioner
the penalty of suspension from office for six (6) months without pay, to wit:
WHEREFORE, as recommended by the Secretary of the Interior and Local
Government, respondent Nueva Ecija Governor Eduardo Nonato Joson is
hereby found guilty of the offenses charged and is meted the penalty of
suspension from office for a period of six (6) months without pay. 31
On January 14, 1998, we issued a temporary restraining order enjoining the
implementation of the order of the Executive Secretary.
On January 19, 1998, private respondents submitted a Manifestation informing this
Court that the suspension of petitioner was implemented on January 9, 1998; that on
the same day, private respondent Oscar Tinio was installed as Acting Governor of
the province; and that in view of these events, the temporary restraining order had
lost its purpose and effectivity and was fait accompli.32 We noted this Manifestation.
In his petition, petitioner alleges that:
I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT RULES OF
PROCEDURE AND EVIDENCE SHOULD NOT BE STRICTLY APPLIED IN THE
ADMINISTRATIVE DISCIPLINARY AND CLEARLY PUNITIVE PROCEEDINGS IN
THE CASE AGAINST PETITIONER GOVERNOR EDNO JOSON;
II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE ALTER-EGO
PRINCIPLE BECAUSE, CONTRARY TO LAW, IT WAS THE SECRETARY OF
THE DILG WHO WAS EXERCISING THE POWERS OF THE PRESIDENT WHICH
ARE CLEARLY VESTED BY LAW ONLY UPON HIM OR THE EXECUTIVE
SECRETARY.
III THE COURT OF APPEALS ERRED IN RULING THAT THE PETITIONER WAS
PROPERLY DECLARED IN DEFAULT WHEN HE FILED A MOTION TO DISMISS
INSTEAD OF AN ANSWER, AS DIRECTED BY THE DILG, BECAUSE A MOTION
TO DISMISS BASED ON JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE
[sic] PLEADING IN ADMINISTRATIVE DISCIPLINARY CASES.
IV THE COURT OF APPEALS ERRED IN RULING THAT THE IMPOSITION OF
PREVENTIVE SUSPENSION AGAINST THE PETITIONER WAS PROPER
BECAUSE THERE WAS NO JOINDER OF ISSUES YET UPON ITS IMPOSITION
AND THERE WAS NO EVIDENCE OF GUILT AGAINST PETITIONER.33
In his "Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of
a Temporary Restraining Order and/or a Writ of Preliminary Injunction," petitioner
also claims that:
I THE RESOLUTION OF JANUARY 8, 1998 AND THE MEMORANDA ISSUED
PURSUANT THERETO (i.e., ANNEXES "C," "D," "E," "F," AND "G" HEREOF)
WERE ISSUED WITH UNDUE HASTE, IN VIOLATION OF THE PERTINENT
PROVISIONS OF THE 1991 LOCAL GOVERNMENT CODE AND
ADMINISTRATIVE ORDER NO. 23, AND IN COMPLETE DISREGARD OF
PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS.
Josef Elvin Campos
II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF JANUARY 8, 1998
(ANNEX "C" HEREOF) BY THE PUBLIC RESPONDENTS ENTITLES
PETITIONER TO THE IMMEDIATE ISSUANCE OF THE TEMPORARY
RESTRAINING ORDER/WRIT OF PRELIMINARY INJUNCTION HEREIN PRAYED
FOR.34
We find merit in the petition.
Administrative disciplinary proceedings against elective local officials are governed
by the Local Government Code of 1991, the Rules and Regulations Implementing the
Local Government Code of 1991, and Administrative Order No. 23 entitled
"Prescribing the Rules and Procedures on the Investigation of Administrative
Disciplinary Cases Against Elective Local Officials of Provinces, Highly Urbanized
Cities, Independent Component Cities, and Cities and Municipalities in Metropolitan
Manila."35 In all matters not provided in A.O. No. 23, the Rules of Court and the
Administrative Code of 1987 apply in a suppletory character. 36
I
Section 60 of Chapter 4, Title II, Book I of the Local Government Code enumerates the
grounds for which an elective local official may be disciplined, suspended or
removed from office. Section 60 reads:
Sec. 60. Grounds for Disciplinary Actions. — An elective local official may be
disciplined, suspended, or removed from office on any of the following
grounds:
punishable by at least prision mayor;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in
the case of members of the sangguniang panlalawigan, sangguniang
panlunsod, sangguniang bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the
status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
enumerated above by order of the proper court.
When an elective local official commits an act that falls under the grounds for
disciplinary action, the administrative complaint against him must be verified and
filed with any of the following:
Sec. 61. Form and Filing of Administrative Complaints. — A verified complaint
against any erring local elective official shall be prepared as follows:
(a) A complaint against any elective official of a province, a highly urbanized
city, an independent component city or component city shall be filed before
the Office of the President.
(b) A complaint against any elective official of a municipality shall be filed
before the sangguniang panlalawigan whose decision may be appealed to the
Office of the President; and
(c) A complaint against any elective barangay official shall be filed before the
sangguniang panlungsod or sangguniang bayan concerned whose decision
shall be final and executory.37
An administrative complaint against an erring elective official must be verified and
filed with the proper government office. A complaint against an elective provincial or
city official must be filed with the Office of the President. A complaint against an
elective municipal official must be filed with the Sangguniang Panlalawigan while
that of a barangay official must be filed before the Sangguniang Panlungsod or
Sangguniang Bayan.
In the instant case, petitioner Joson is an elective official of the province of Nueva
Ecija. The letter-complaint against him was therefore properly filed with the Office of
the President. According to petitioner, however, the letter-complaint failed to
conform with the formal requirements set by the Code. He alleges that the complaint
was not verified by private respondents and was not supported by the joint affidavit
of the two witnesses named therein; that private respondents later realized these
defects and surreptitiously inserted the verification and sworn statement while the
Josef Elvin Campos
complaint was still pending with the Office of the President. 38 To prove his
allegations, petitioner submitted: (a) the sworn statement of private respondent
Solita C. Santos attesting to the alleged fact that after the letter-complaint was filed,
Vice-Governor Tinio made her and the other members of the Sangguniang
Panlalawigan sign an additional page which he had later notarized; and (b) the fact
that the verification of the letter-complaint and the joint affidavit of the witnesses do
not indicate the document, page or book number of the notarial register of the notary
public before whom they were made.39
We find no merit in the contention of the petitioner. The absence of the document,
page or book number of the notarial register of the subscribing officer is insufficient
to prove petitioner's claim. The lack of these entries may constitute proof of neglect
on the part of the subscribing officer in complying with the requirements for
notarization and proper verification. They may give grounds for the revocation of his
notarial commission.40 But they do not indubitably prove that the verification was
inserted or intercalated after the letter-complaint was filed with the Office of the
President.
Nor is the fact of intercalation sufficiently established by the affidavit of Solita C.
Santos. Private respondent Santos was one of the signatories to the letter-complaint.
In her affidavit, she prayed that she be dropped as one of the complainants since she
had just joined the political party of petitioner Joson. She decided to reveal the
intercalation because she was disillusioned with the "dirty tactics" of Vice-Governor
Tinio to grab power from petitioner Joson. 41 Private respondent Santos cannot in
anyway be considered an unbiased witness. Her motive and change of heart render
her affidavit suspect.
Assuming, nonetheless, that the letter-complaint was unverified when submitted to
the Office of the President, the defect was not fatal. The requirement of verification
was deemed waived by the President himself when he acted on the complaint.
Verification is a formal, not jurisdictional requisite. 42 Verification is mainly intended to
secure an assurance that the allegations therein made are done in good faith or are
true and correct and not mere speculation. 43 The lack of verification is a mere formal
defect.44 The court may order the correction of the pleading, if not verified, or act on
the unverified pleading if the attending circumstances are such that a strict
compliance with the rule may be dispensed with in order that the ends of justice may
be served.45
II
In his second assigned error, petitioner questions the jurisdiction and authority of
the DILG Secretary over the case. He contends that under the law, it is the Office of
the President that has jurisdiction over the letter-complaint and that the Court of
Appeals erred in applying the alter-ego principle because the power to discipline
elective local officials lies with the President, not with the DILG Secretary.
Jurisdiction over administrative disciplinary actions against elective local officials is
lodged in two authorities: the Disciplining Authority and the Investigating Authority.
This is explicit from A.O. No. 23, to wit:
Sec. 2. Disciplining Authority. All administrative complaints, duly verified,
against elective local officials mentioned in the preceding Section shall be
acted upon by the President. The President, who may act through the
Executive Secretary, shall hereinafter be referred to as the Disciplining
Authority.
Sec. 3. Investigating Authority. The Secretary of the Interior and Local
Government is hereby designated as the Investigating Authority. He may
constitute an Investigating Committee in the Department of the Interior and
Local Government for the purpose.
The Disciplining Authority may, however, in the interest of the service,
constitute a Special Investigating Committee in lieu of the Secretary of the
Interior and Local Government.46
Pursuant to these provisions, the Disciplining Authority is the President of the
Philippines, whether acting by himself or through the Executive Secretary. The
Secretary of the Interior and Local Government is the Investigating Authority, who
may act by himself or constitute an Investigating Committee. The Secretary of the
DILG, however, is not the exclusive Investigating Authority. In lieu of the DILG
Secretary, the Disciplinary Authority may designate a Special Investigating
Committee.
Josef Elvin Campos
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. 47
The power of supervision means "overseeing or the authority of an officer to see that
the subordinate officers perform their duties." 48 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. 49 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. 50 Supervision is not
incompatible with discipline.51 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.52 Thus:
Independently of any statutory provision authorizing the President to conduct
an investigation of the nature involved in this proceeding, and in view of the
nature and character of the executive authority with which the President of the
Philippines is invested, the constitutional grant to him of power to exercise
general supervision over all local governments and to take care that the laws
be faithfully executed must be construed to authorize him to order an
investigation of the act or conduct of the petitioner herein. Supervision is not a
meaningless thing. It is an active power. It is certainly not withou t limitation,
but it at least implies authority to inquire into facts and conditions in order to
render the power real and effective. If supervision is to be conscientious and
rational, and not automatic and brutal, it must be founded upon a knowledge
of actual facts and conditions disclosed after careful study and investigation. 53
The power to discipline evidently includes the power to investigate. As the
Disciplining Authority, the President has the power derived from the Constitution
itself to investigate complaints against local government officials. A.O. No. 23,
however, delegates the power to investigate to the DILG or a Special Investigating
Committee, as may be constituted by the Disciplining Authority. This is not undue
delegation, contrary to petitioner Joson's claim. The President remains the
Disciplining Authority. What is delegated is the power to investigate, not the power to
discipline.54
Moreover, the power of the DILG to investigate administrative complaints is based on
the alter-ego principle or the doctrine of qualified political agency. Thus:
Under this doctrine, which recognizes the establishment of a single executive,
all executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants
and agents of the Chief Executive, and, except in cases where the Chief
Executive is required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed
by and through the executive departments, and the acts of the Secretaries of
such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive
presumptively the acts of the Chief Executive.55
This doctrine is corollary to the control power of the President. 56 The power of control
is provided in the Constitution, thus:
Sec. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed. 57
Control is said to be the very heart of the power of the presidency. 58 As head of the
Executive Department, the President, however, may delegate some of his powers to
the Cabinet members except when he is required by the Constitution to act in person
or the exigencies of the situation demand that he acts personally. 59 The members of
Cabinet may act for and in behalf of the President in certain matters because the
President cannot be expected to exercise his control (and supervisory) powers
personally all the time. Each head of a department is, and must be, the
Josef Elvin Campos
President's alter ego in the matters of that department where the President is
required by law to exercise authority. 60
The procedure how the Disciplining and Investigating Authorities should exercise
their powers is distinctly set forth in the Local Government Code and A.O. No. 23.
Section 62 of the Code provides:
Sec. 62. Notice of Hearing. — (a) Within seven (7) days after the administrative
complaint is filed, the Office of the President or the sanggunian concerned, as
the case may be, shall require the respondent to submit his verified answer
within fifteen (15) days from receipt thereof, and commence investigation of
the case within ten (10) days after receipt of such answer of the respondent.
x x x x x x x x x
Sections 1 and 3, Rule 561 of A.O. No. 23 provide:
Sec. 1. Commencement. Within forty-eight (48) hours from receipt of the
answer, the Disciplining Authority shall refer the complaint and answer,
together with their attachments and other relevant papers, to the Investigating
Authority who shall commence the investigation of the case within ten (10)
days from receipt of the same.
x x x x x x x x x
Sec. 3. Evaluation. Within twenty (20) days from receipt of the complaint and
answer, the Investigating Authority shall determine whether there is a prima
facie case to warrant the institution of formal administrative proceedings.
When an administrative complaint is therefore filed, the Disciplining Authority shall
issue an order requiring the respondent to submit his verified answer within fifteen
(15) days from notice. Upon filing of the answer, the Disciplining Authority shall refer
the case to the Investigating Authority for investigation.
In the case at bar, petitioner claims that the DILG Secretary usurped the power of the
President when he required petitioner to answer the complaint. Undisputably, the
letter-complaint was filed with the Office of the President but it was the DILG
Secretary who ordered petitioner to answer.
Strictly applying the rules, the Office of the President did not comply with the
provisions of A.O. No. 23. The Office should have first required petitioner to file his
answer. Thereafter, the complaint and the answer should have been referred to the
Investigating Authority for further proceedings. Be that as it may, this procedural
lapse is not fatal. The filing of the answer is necessary merely to enable the President
to make a preliminary assessment of the case. 62 The President found the complaint
sufficient in form and substance to warrant its further investigation. The judgment of
the President on the matter is entitled to respect in the absence of grave abuse of
discretion.
III
In his third assigned error, petitioner also claims that the DILG erred in declaring him
in default for filing a motion to dismiss. He alleges that a motion to dismiss is not a
pleading prohibited by the law or the rules and therefore the DILG Secretary should
have considered it and given him time to file his answer.
It is true that a motion to dismiss is not a pleading prohibited under the Local
Government Code of 1991 nor in A.O. No. 23. Petitioner, however, was instructed not
to file a motion to dismiss in the order to file answer. Thrice, he requested for
extension of time to file his answer citing as reasons the search for competent
counsel and the demands of his official duties. And, thrice, his requests were
granted. Even the order of default was reconsidered and petitioners was given
additional time to file answer. After al the requests and seven months later, he filed a
motion to dismiss!
Petitioner should know that the formal investigation of the case is required by law to
be finished within one hundred twenty (120) days from the time of formal notice to
the respondent. The extensions petitioners requested consumed fifty-five (55) days
of this period.63 Petitioner, in fact, filed his answer nine (9) months after the first
notice. Indeed, this was more than sufficient time for petitioner to comply with the
order to file answer.
The speedy disposition of administrative complaints is required by public service.
The efficiency of officials under investigation is impaired when a case hangs over
their heads. Officials deserve to be cleared expeditiously if they are innocent, also
expeditiously if guilty, so that the business of government will not be prejudiced. 64
IV
Josef Elvin Campos
In view of petitioner's inexcusable failure to file answer, the DILG did not err in
recommending to the Disciplining Authority his preventive suspension during the
investigation. Preventive suspension is authorized under Section 63 of the Local
Government Code, viz:
Sec. 63. Preventive Suspension. — (a) Preventive suspension may be
imposed:
(1) By the President, if the respondent is an elective official of a province, a
highly urbanized or an independent component city;
x x x x x x x x x
(b) Preventive suspension may be imposed at any time after the issues are
joined, when the evidence of guilt is strong, and given the gravity of the
offense, there is great probability that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence; Provided, That, any single
preventive suspension of local elective officials shall not extend beyond sixty
(60) days: Provided, further, That in the event that several administrative cases
are filed against an elective official, he cannot be preventively suspended for
more than ninety (90) days within a single year on the same ground or grounds
existing and known at the time of the first suspension.
x x x x x x x x x
In sum, preventive suspension may be imposed by the Disciplining Authority at any
time (a) after the issues are joined; (b) when the evidence of guilt is strong; and (c)
given the gravity of the offense, there is great probability that the respondent, who
continues to hold office, could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence.
Executive Secretary Torres, on behalf of the President, imposed preventive
suspension on petitioner Joson after finding that:
x x x x x x x x x
DILG Secretary Robert Z. Barbers, in a memorandum for the President, dated
23 June 1997, recommends that respondent be placed under preventive
suspension considering that all the requisites to justify the same are present.
He stated therein that:
"Preventive suspension may be imposed at any time after the
issues are joined, that is, after respondent has answered the
complaint, when the evidence of guilt is strong and, given the
gravity of the offense, there is a great possibility that the
continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the
records and other evidence (Sec. 3, Rule 6 of Administrative
Order No. 23).
The failure of respondent to file his answer despite several
opportunities given him is construed as a waiver of his right to
present evidence in his behalf (Sec. 4, Rule 4 of Administrative
Order No. 23). The requisite of joinder of issues is squarely met
with respondent's waiver of right to submit his answer. The act of
respondent in allegedly barging violently into the session hall of
the Sangguniang Panlalawigan in the company of armed men
constitutes grave misconduct. The allegations of complainants
are bolstered by the joint-affidavit of two (2) employees of the
Sangguniang Panlalawigan. Respondent who is the chief
executive of the province is in a position to influence the
witnesses. Further, the history of violent confrontational politics
in the province dictates that extreme precautionary measures be
taken."
Upon scrutiny of the records and the facts and circumstances attendant to this
case, we concur with the findings of the Secretary of the Interior and Local
Government and find merit in the aforesaid recommendation.
WHEREFORE, and as recommended by the Department of the Interior and
Local Government, respondent EDUARDO N. JOSON, Governor of Nueva
Ecija, is hereby placed under PREVENTIVE SUSPENSION FOR A PERIOD OF
SIXTY (60) DAYS, effective 11 July 1997, pending investigation of the charges
filed against him.
SO ORDERED.65
Josef Elvin Campos
Executive Secretary Torres found that all the requisites for the imposition of
preventive suspension had been complied with. Petitioner's failure to file his answer
despite several opportunities given him was construed as a waiver of his right to file
answer and present evidence; and as a result of this waiver, the issues were deemed
to have been joined. The Executive Secretary also found that the evidence of
petitioner Joson's guilt was strong and that his continuance in office during the
pendency of the case could influence the witnesses and pose a threat to the safety
and integrity of the evidence against him.
V
We now come to the validity of the January 8, 1998 Resolution of the Executive
Secretary finding petitioner guilty as charged and imposing on him the penalty of
suspension from office for six (6) months from office without pay.
Petitioner claims that the suspension was made without formal investigation
pursuant to the provisions of Rule 7 of A.O. No. 23. Petitioner filed a "Motion To
Conduct Formal Investigation" three months before the issuance of the order of
suspension and this motion was denied by the DILG for the following reasons:
On November 19, 1997, complainants, through counsel, filed a Manifestation
calling our attention to the Decision dated October 24, 1997 of the Court of
Appeals, Fifth Division in CA-G.R. SP No. 44694, entitled "Eduardo Nonato
Joson versus Executive Secretary Ruben D. Torres, et. al." In the aforestated
decision, the Court of Appeals resolved to sustain the authority of this
Department to investigate this administrative case and has likewise validated
the order of default as well as the order of preventive suspension of the
respondent.
We offer no objection and concur with the assertion of respondent that he has
the right for the conduct of formal investigation. However, before there shall
be a formal investigation, joinder of issues must already be present or
respondent's answer has already been filed. In the case at bar, the admission
of respondent's answer after having been declared in default was conditioned
on the fact of submission of position papers by the parties, after which, the
case shall be deemed submitted for resolution. Respondent, instead of
submitting his position paper filed his subject motion while complainants
manifested to forego the submission of position paper and submit the case for
resolution on the basis of the pleadings on hand.
Settled is the rule that in administrative proceedings, technical rules of
procedure and evidence are not strictly applied (Concerned Officials of the
Metropolitan Waterworks and Sewerage System v. Vasquez, 240 SCRA 502).
The essence of due process is to be found in the reasonable opportunity to be
heard and to submit evidence one may have in support of one's defense
(Tajonera v. Lamaroza, 110 SCRA 438). To be heard does not only mean verbal
arguments in court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or pleadings, is
accorded, there is no denial of procedural due process (Juanita Y. Say, et. al;
vs. IAC, G.R. No. 73451). Thus, when respondent failed to submit his position
paper as directed and insisted for the conduct of formal investigation, he was
not denied of his right of procedural process.
WHEREFORE, the Motion for the Conduct of Formal Investigation, for lack of
merit, is DENIED.
SO ORDERED.66
The denial of petitioner's Motion to Conduct Formal Investigation is erroneous.
Petitioner's right to a formal investigation is spelled out in the following provisions of
A.O. No. 23, viz:
Sec. 3 Evaluation. Within twenty (20) days from receipt of the complaint and
answer, the Investigating Authority shall determine whether there is a prima
facie case to warrant the institution of formal administrative proceedings.
Sec. 4. Dismissal motu proprio. If the Investigating Authority determines that
there is no prima facie case to warrant the institution of formal administrative
proceedings, it shall, within the same period prescribed under the preceding
Section, submit its recommendation to the Disciplining Authority for the motu
proprio dismissal of the case, together with the recommended decision,
resolution, and order.
Sec. 5. Preliminary conference. If the Investigating Authority determines that
there is prima facie case to warrant the institution of formal administrative
Josef Elvin Campos
proceedings, it shall, within the same period prescribed under the preceding
Section, summon the parties to a preliminary conference to consider the
following:
a) whether the parties desire a formal investigation or are willing
to submit the case for resolution on the basis of the evidence on
record; and
b) If the parties desire a formal investigation, to consider the
simplification of issues, the possibility of obtaining stipulation or
admission of facts and of documents, specifically affidavits and
depositions, to avoid unnecessary proof, the limitation of number
of witnesses, and such other matters as may be aid the prompt
disposition of the case.
The Investigating Authority shall encourage the parties and their counsels to
enter, at any stage of the proceedings, into amicable settlement, compromise
and arbitration, the terms and conditions of which shall be subject to the
approval of the Disciplining Authority.
After the preliminary conference, the Investigating Authority shall issue an
order reciting the matters taken up thereon, including the facts stipulated and
the evidences marked, if any. Such order shall limit the issues for hearing to
those not disposed of by agreement or admission of the parties, and shall
schedule the formal investigation within ten (10) days from its issuance,
unless a later date is mutually agreed in writing by the parties concerned. 67
The records show that on August 27, 1997, petitioner submitted his Answer Ad
Cautelam where he disputed the truth of the allegations that he barged into the
session hall of the capitol and committed physical violence to harass the private
respondents who were opposed to any move for the province to contract a P150
million loan from PNB. In his Order of October 8, 1997, Undersecretary Sanchez
admitted petitioner's Answer Ad Cautelam but treated it as a position paper. On
October 15, 1997, petitioner filed a Motion to Conduct Formal Investigation. Petitioner
reiterated this motion on October 29, 1997. Petitioner's motion was denied on
November 11, 1997. Secretary Barbers found petitioner guilty as charged on the
basis of the parties' position papers. On January 8, 1998, Executive Secretary Torres
adopted Secretary Barbers' findings and recommendations and imposed on
petitioner the penalty of six (6) months suspension without pay.
The rejection of petitioner's right to a formal investigation denied him procedural due
process. Section 5 of A.O. No. 23 provides that at the preliminary conference, the
Investigating Authority shall summon the parties to consider whether they desire a
formal investigation. This provision does not give the Investigating Authority the
discretion to determine whether a formal investigation would be conducted. The
records show that petitioner filed a motion for formal investigation. As respondent,
he is accorded several rights under the law, to wit:
Sec. 65. Rights of Respondent. — The respondent shall be accorded full
opportunity to appear and defend himself in person or by counsel, to confront
and cross-examine the witnesses against him, and to require the attendance of
witnesses and the production of documentary evidence in his favor through
compulsory process of subpoena or subpoena duces tecum.
An erring elective local official has rights akin to the constitutional rights of an
accused.68 These rights are essentially part of procedural due process. 69 The local
elective official has the (1) the right to appear and defend himself in person or by
counsel; (2) the right to confront and cross-examine the witnesses against him; and
(3) the right to compulsory attendance of witness and the production of documentary
evidence. These rights are reiterated in the Rules Implementing the Local
Government Code70 and in A.O. No. 23. 71 Well to note, petitioner, formally claimed his
right to a formal investigation after his Answer Ad Cautelam has been admitted by
Undersecretary Sanchez.
Petitioner's right to a formal investigation was not satisfied when the complaint
against him was decided on the basis of position papers. There is nothing in the
Local Government Code and its Implementing Rules and Regulations nor in A.O. No.
23 that provide that administrative cases against elective local officials can be
decided on the basis of position papers. A.O. No. 23 states that the Investigating
Authority may require the parties to submit their respective memoranda but this is
only after formal investigation and hearing. 72 A.O. No. 23 does not authorize the
Investigating Authority to dispense with a hearing especially in cases involving
Josef Elvin Campos
allegations of fact which are not only in contrast but contradictory to each other.
These contradictions are best settled by allowing the examination and cross-
examination of witnesses. Position papers are often-times prepared with the
assistance of lawyers and their artful preparation can make the discovery of truth
difficult. The jurisprudence cited by the DILG in its order denying petitioner's motion
for a formal investigation applies to appointive officials and employees.
Administrative disciplinary proceedings against elective government officials are not
exactly similar to those against appointive officials. In fact, the provisions that apply
to elective local officials are separate and distinct from appointive government
officers and employees. This can be gleaned from the Local Government Code itself.
In the Local Government Code, the entire Title II of Book I of the Code is devoted to
elective officials. It provides for their qualifications and
election,73 vacancies and succession,74 local legislation,75 disciplinary
actions,76 and recall.77 Appointive officers and employees are covered in Title III of
Book I of the Code entitled "Human Resources and Development." All matters
pertinent to human resources and development in local government units are
regulated by "the civil service law and such rules and regulations and other
issuances promulgated thereto, unless otherwise provided in the Code." 78 The
"investigation and adjudication of administrative complaints against appointive local
officials and employees as well as their suspension and removal" are "in accordance
with the civil service law and rules and other pertinent laws," the results of which
"shall be reported to the Civil Service Commission." 79
It is the Administrative Code of 1987, specifically Book V on the Civil Service, that
primarily governs appointive officials and employees. Their qualifications are set
forth in the Omnibus Rules Implementing Book V of the said Code. The grounds for
administrative disciplinary action in Book V are much more in number and are
specific than those enumerated in the Local Government Code against elective local
officials.80 The disciplining authority in such actions is the Civil Service
Commission.81 although the Secretaries and heads of agencies and instrumentalities,
provinces, cities and municipalities are also given the power to investigate and
decide disciplinary actions against officers and employees under their
jurisdiction.82 When a complaint is filed and the respondent answers, he must
"indicate whether or not he elects a formal investigation if his answer is not
considered satisfactory."83 If the officer or employee elects a formal investigation, the
direct evidence for the complainant and the respondent "consist[s] of the sworn
statement and documents submitted in support of the complaint and answer, as the
case may be, without prejudice to the presentation of additional evidence deemed
necessary . . ., upon which the cross-examination by respondent and the
complainant, respectively, is based."84 The investigation is conducted without
adhering to the technical rules applicable in judicial proceedings." 85 Moreover, the
appointive official or employee may be removed or dismissed summarily if (1) the
charge is serious and the evidence of guilt is strong; (2) when the respondent is a
recidivist; and (3) when the respondent is notoriously undesirable. 86
The provisions for administrative disciplinary actions against elective local officials
are markedly different from appointive officials. 87 The rules on the removal and
suspension of elective local officials are more stringent. The procedure of requiring
position papers in lieu of a hearing in administrative cases is expressly allowed with
respect to appointive officials but not to those elected. An elective official, elected by
popular vote, is directly responsible to the community that elected him. The official
has a definite term of office fixed by law which is relatively of short duration.
Suspension and removal from office definitely affects and shortens this term of
office. When an elective official is suspended or removed, the people are deprived of
the services of the man they had elected. Implicit in the right of suffrage is that the
people are entitled to the services of the elective official of their choice. 88 Suspension
and removal are thus imposed only after the elective official is accorded his rights
and the evidence against him strongly dictates their imposition.
IN VIEW WHEREOF, the Resolution of January 8, 1998 of the public respondent
Executive Secretary is declared null and void and is set aside. No Cost.
SO ORDERED.
Regalado, Melo, Mendoza and Martinez, JJ., concur.
Salalima v. Guingona (257 SCRA 55)
G.R. Nos. 117589-92 May 22, 1996
Josef Elvin Campos
ROMEO R. SALALIMA, DANILO S. AZAÑA, JUAN VICTORIA, LORENZO REYEG,
ARTURO OSIA, CLENIO CABREDO, VICENTE GO, SR., RAMON FERNANDEZ, JR.,
MASIKAP FONTANILLA, WILBOR RONTAS and NEMESIO BACLAO, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, in his capacity as the Executive Secretary, VICTOR
R. SUMULONG, RENATO C. CORONA and ANGEL V. SALDIVAR, in their capacity as
Members of the Ad Hoc Committee, MAYOR NAOMI C. CORRAL, KGD. FRANCISCO
ALARTE, MAYOR ANTONIO DEMETRIOU; and DOMINADOR LIM, JESUS JAMES
CALISIN, EVELYN SILVERIO, SILVERIO COPE, TOBIAS BETITO, MANUEL LANUZA,
JAMES ENRICO SALAZAR, RODOLFO ANTE, JUAN RIVERA, MARCIAL TUANQUI,
DR. SALVADOR SAMBITAN, ATTY. EUTIQUIO NEPOMUCENO, in their capacity as
ACTING GOVERNOR, ACTING VICE-GOVERNOR, and ACTING MEMBERS OF THE
SANGGUNIANG PANLALAWIGAN OF ALBAY, respectively, respondents.

DAVIDE, JR., J.:p
Petitioners seek to annul and set aside Administrative Order No. 153, signed on 7 October
1994 by the President and by public respondent Executive Secretary Teofisto T. Guingona,
Jr., approving the findings of fact and recommendations of the Ad Hoc Committee and
holding the petitioners administratively liable for the following acts or omissions: (a) wanton
disregard of law amounting to abuse of authority in O.P. Case No. 5470; (b) grave abuse of
authority under Section 60 (e) of the Local Government Code of 1991 (R.A. No. 7160) in
O.P. Case No. 5469; (c) oppression and abuse of authority under Section 60 (c) and (e) of
R.A. No. 7160 in O.P. Case No. 5471; and (d) abuse of authority and negligence in O.P.
Case No. 5450. The said order meted out on each of the petitioners penalties of suspension
of different durations, to be served successively but not to go beyond their respective
unexpired terms in accordance with Section 66 (b) of R.A. No. 7160.
Prefacing the petition with a claim that the challenged administrative order is "an oppressive
and capricious exercise of executive power," the petitioners submit that:
I.
THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY
TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
SUSPENDING THE PETITIONERS FOR PERIODS RANGING FROM
TWELVE MONTHS TO TWENTY MONTHS IN VIOLATION OF THE
CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY AND SECURITY
OF TENURE AND APPOINTING UNQUALIFIED PERSONS TO NON-
VACANT POSITIONS AS THEIR SUCCESSORS IN OFFICE.
II.
THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY
TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THE PETITIONERS GUILTY OF ABUSE OF AUTHORITY FOR
FAILURE TO SHARE WITH THE MUNICIPALITY OF TIWI THE AMOUNT
OF P40,724,471.74 PAID BY NAPOCOR TO THE PROVINCE OF ALBAY,
PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY 29,
1992.
III.
THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH
ABUSE OF DISCRETION IN SUSPENDING THE PETITIONERS BASED
UPON THE PROVISIONS OF THE LOCAL GOVERNMENT CODE:
A. WHAT WERE NOT COMPLAINED OF;
B. UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY;
AND
C. WHERE THE ADMINISTRATIVE CASES WHEN FILED
WERE ALREADY COVERED BY PRESCRIPTION.
IV.
THE PUBLIC RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT
PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO
REPORT NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION
ON AUDIT SITTING EN BANC.
We resolved to give due course to this petition and to decide it on the basis of the pleadings
thus far submitted, after due consideration of the satisfactory explanation of the petitioners
that his case has not been mooted by the expiration of their term of office on 30 June 1995
Josef Elvin Campos
and the comment of the Office of the Solicitor General that this case be resolved on the
merits. In seeking a resolution of this case on the merits, the office of the Solicitor General
invites the attention of the Court to the following:
(a) While the periods of suspension have been served by petitioners and that
some of them have even been elected to other government positions, there is
the primary issue of whether the suspensions were valid and grounded on
sufficient cause.
(b) If the suspensions are found to be valid, petitioners are not entitled to
reimbursement of salaries during their suspension period.
(c) If upheld, Administrative Order No. 15, would be used as a strong ground
in filing cases against petitioners for violations of the Anti Graft and Corrupt
Practices Act.
(d) Corollary [sic] to these issues is the issue of the interpretation and
application of the [R]eal Property Tax Code and the Local Government Code
under the circumstances of this case.
(e) The resolution of these issues would finally put to rest whether
respondents acted with grave abuse of discretion amounting to lack of
jurisdiction for having suspended petitioners on the basis of their findings in
the four (4) administrative cases filed against the petitioners.
The factual antecedents are not complicated.
Sometime in 1993, several administrative complaints against the petitioners, who were
elective officials of the Province of Albay, were filed with the Office of the President and
later docketed as O.P. Cases Nos. 5450, 5469, 5470, and 5471. Acting thereon, the
President issued Administrative Order No. 94 creating an Ad Hoc Committee to investigate
the charges and to thereafter submit its findings and recommendations.
The Ad Hoc committee was composed of Undersecretary Victor R. Sumulong of the
Department of the Interior and Local Government (DILG), Assistant Executive Secretary
Renato C. Corona, and Presidential Assistant Angel V. Saldivar.
On 26 August 1994, after conducting hearings, the Ad Hoc Committee submitted its report
to the Office of the President.
On 7 October 1994, the President promulgated Administrative Order No. 153 quoting with
approval the following pertinent findings and recommendations of the Committee; thus:
The finding of the Ad-Hoc Committee in OP Case Nos. 547(1, 5469, 5471
and 5450 are as follows
I. OP Case No. 5470
This refers to the administrative complaint filed by Tiwi Mayor Naomi Corral
against Albay Governor Romeo Salalima, Vice-Governor Danilo Azaña, and
Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg,
Arturo Osia, Clenio Cabredo, Vicente Go [S]r., Jesus Marcellana, Ramon
Fernandez, Jr. Masikap Fontilla, and Wilbor Rontas.
Docketed as OP Case No. 5470, the complaint charges the respondents for
malversation and consistent & habitual violation of pars. (c) and (d) of Section
60 of Republic Act (RA) No. 7160, otherwise known as the "Local
Government Code."
On 4 June 1990, the Supreme Court in the case entitled "National Power
Corporation (NPC) v. The Province of Albay, et al.", G.R. No. 87479 rendered
judgment (Exhs. D to D-14) declaring, inter alia, NPC liable for unpaid real
estate taxes on its properties in Albay covering the period 11 June 1984 to 10
March 1987.
Citing the fact that its tax exemption privileges had been revoked, the
Supreme Court held that NPC's real properties, consisting mainly of
geothermal plants in Tiwi and substation facilities in Daraga, are subject to
real estate tax in accordance with Presidential Decree (PD) No. 464, as
amended, otherwise known as the "Real Property Tax Decree."
Earlier, said properties were sold at an auction sale conducted by the
Province of Albay (the "Province") to satisfy NPC's tax liabilities. Being the
sole bidder at the auction, the Province acquired ownership over said
properties.
On 29 July 1992, the NPC through then President Pablo Malixi and the
Province represented by respondent Salalima, entered into a Memorandum
of agreement ("MOA") [Exhs. 7 to 7-A] whereby the former agreed to settle its
tax liabilities, then estimated at P214,845,104.76.
Josef Elvin Campos
Under the MOA, the parties agreed that:
— the actual amount collectible from NPC will have to be
recomputed/revalidated;
— NPC shall make an initial payment of P17,763,000.00 upon
signing of the agreement;
— the balance of the recomputed/revalidated amount (less the
aforesaid initial payment), shall be paid in twenty-four (24)
equal monthly installments to commence in September 1992;
and
— ownership over the auctioned properties shall revert to NPC
upon satisfaction of the tax liabilities.
On 3 August 1992, Mayor Corral formally requested the Province through
respondent Salalima, to remit the rightful tax shares of Tiwi and certain
barangays of Tiwi where NPC's properties are located ("concerned
barangays") relative to the payments made by NPC (Exh. B).
On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed
Resolution No. 12-91 (Exhs. G to G-1) requesting the Albay Sangguniang
Panlalawigan to hold a joint session with the former together with Mayor
Corral and the Sangguniang Pambarangays of the concerned barangays, for
the purpose of discussing the distribution or application of the NPC payments.
On 10 August 1992, respondent Salalima replied that the request cannot be
granted as the initial payment amounting to P17,763,000.00 was only an
"earnest money" and that the total amount to be collected from NPC was still
being validated (Exh. 1).
Not satisfied with respondent Salalima's response, Mayor Corral complained
to NPC about the Province's failure to remit Tiwi's and the concerned
barangays' shares in the payments made by NPC (Exh. 50-C).
On 14 August 1992, President Malixi informed respondent Salalima that the
representatives of both NPC and the Province have reconciled their accounts
and determined that the amount due from NPC was down to
P207,375,774.52 (Exh. 20).
Due to the brewing misunderstanding between Tiwi and the concerned
barangays on the one hand, and the Province on the other, and so as not to
be caught in the middle of the controversy, NPC requested a clarification from
the Office of the President as to the scope and extent of the shares of local
government units in real estate tax collections (Exh. 6 to 6-A).
Meantime, the Albay Sangguniang Panlalawigan passed Resolution No. 178-
92 dated 8 October 1992 (Exh. R) and Resolution No. 204-92 dated 5
November 1992 (Exh. S) appropriating P9,778,932.57 and P17,663,431.58 or
a total of P27,442,364.15 from the general fund to satisfy "prior years"
obligations and to implement certain projects of the Province. These
resolutions were approved by respondent Salalima on 22 October 1992 and 6
November 1992, respectively.
On 3 December 1992, the Office of the President through Chief Presidential
Legal Counsel Antonio Carpio opined that the MOA entered into by NPC and
the Province merely recognized and established NPC's tax liability. He further
clarified that the sharing scheme and those entitled to the payments to be
made by NPC under the MOA should be that provided under the law, and
since Tiwi is entitled to share in said tax liabilities, NPC may remit such share
directly to Tiwi. The pertinent portion of Chief Presidential Legal Counsel
Carpio's letter dated 3 December 1992 (Exhs. H to H-1) addressed to
President Malixi reads:
xxx xxx xxx
The Memorandum of Agreement entered into by the Province
of Albay and NPC merely enunciates the tax liability of NPC.
The Memorandum of Agreement does not provide for the
manner of payment of NPC's liability. Thus, the manner of
payment as provided for by law shall govern. In any event, the
Memorandum of Agreement cannot amend the law allowing the
payment of said taxes to the Municipality of Tiwi.
The decision in the case of NPC v. Province of Albay (186
SCRA 198), likewise, only establishes the liability of NPC for
Josef Elvin Campos
real property taxes but does not specifically provide that said
back taxes be paid exclusively to Albay province.
Therefore, it is our opinion that the NPC may pay directly to the
municipality of Tiwi the real property taxes accruing to the
same.
Very truly
yours,
(Sgd.)
ANTO
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CARPI
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Because of this opinion, President Malixi, through a letter dated 9 December
1992 (Exh. I to I-1), informed Mayor Corral and respondent Salalima that
starting with the January 1993 installment, NPC will directly pay Tiwi its share
in the payments under the MOA. He also invited the parties to a clarificatory
meeting on 17 December 1992 at his Quezon City office to discuss the matter
in detail.
Only Mayor Corral attended the 17 December 1992 meeting with President
Malixi as respondent Salalima was indisposed. President Malixi then provided
Mayor Corral with schedules (Exhs. J to J-2) of the payments already made
by NPC under the MOA and the computation and the distribution of shares.
As of 9 December 1992, payments made by NPC to the Province reached
P40,724,471.74, broken down as follows:
Payment Dates Amount
July 29, 1992 P 17,763,000.00
Sept. 3, 1992 4,660,255.80
Oct. 5, 1992 6,820,480.02
Nov. 5, 1992 5,740,367.96
Dec. 9, 1992 5,740,367.96
Josef Elvin Campos
——————
Total P 40,724,471.74
On 19 December 1992, in an apparent reaction to NPC's decision to directly
remit to Tiwi its share in the payments made and still to be made pursuant to
the MOA, the Albay Sangguniang Panlalawigan passed Ordinance No. 09-92
(Exhs. K to K-1), which, among others:
— authorized the Provincial Treasurer upon the direction of the
Provincial Governor to sell the real properties (acquired by the
Province at the auction sale) at a public auction, and to cause
the immediate transfer thereof to the winning bidder; and
— declared as forfeited in favor of the Province, all the
payments already made by NPC under the MOA.
Realizing from the actuations of the respondents that Tiwi's share in the
P40,724,471.74 payments already made by NPC will not be forthcoming,
Mayor Corral filed the present complaint with the Office of the President on 25
January 1993.
In determining whether the respondents are guilty of the charges against
them, the threshold issue of whether the payments to be made by NPC under
the MOA should accrue solely and exclusively in favor of the Province, must
first be resolved.
Sections 38, 39, 41, 86 and 87 of PD No. 464, as amended, prescribe the
authority of local government units to levy real property tax as well as the
sharing scheme among local government units including the national
government with respect thereto. Said provisions read:
Sec. 38. Incidence of Real Property Tax. — There shall be
levied, assessed, and collected in all provinces, cities and
municipalities an annual ad valorem tax on real property, such
as land, buildings, machinery and the improvements affixed or
attached to real property not hereinafter specifically exempted.
Sec. 39. Rates of Levy. — The provincial, city or municipal
board or council shall fix a uniform rate of real property tax
applicable to their respective localities as follows:
(1) In the case of a province, the tax shall be fixed by ordinance
of the provincial board at the rate of not less than one-fourth of
one percent but not more than one-half of one percent of the
assessed value of real property;
(2) In the case of a city, the tax shall be fixed by ordinance of
the municipal board or city council at the rate of not less
than one-half of one percent but not more than two percent of
the assessed value of real property; and
(3) In the case of a municipality, the tax shall be fixed by
ordinance of the municipal council subject to the approval of the
provincial board at the rate of not less than one-fourth of one
percent but not more than one-half of one percent of the
assessed value of real property.
Sec. 41. An additional one percent tax on real property for the
Special Education Fund. — There is hereby imposed an annual
tax of one percent on real property to accrue to the Special
Education Fund created under Republic Act No. 5447, which
shall be in addition to the basic real property tax which local
governments are authorized to levy, assess and collect under
this Code; Provided, That real property granted exemption
under Section 40 of this code shall also be exempt from the
imposition accruing to the Special Education Fund. (as
amended by PD No. 1913).
Sec. 86. Distribution of proceeds. — (a) The proceeds of the
real property tax, except as otherwise provided in this Code,
shall accrue to the province, city or municipality where the
property subject to the tax is situated and shall be applied by
the respective local government unit for its own use and
benefit.
Josef Elvin Campos
(b) Barrio shares in real property tax collections. — The annual
shares of the barrios in real property tax collections shall be as
follows:
(1) Five percent of the real property tax collections of the
province and another five percent of the collections of the
municipality shall accrue to the barrio where the property
subject to the tax is situated.
(2) In the case of the city, ten percent of the collections of the
tax shall likewise accrue to the barrio where the property is
situated.
xxx xxx xxx
Sec. 87. Application of proceeds. — (a) The proceeds of the
real property tax pertaining to the city and to the municipality
shall accrue entirely to their respective general funds. In the
case of the province, one-fourth thereof shall accrue to its road
and bridge fund and remaining three-fourths of its general fund.
(b) The entire proceeds of the additional one
percent real property tax Levied for the Special
Education Fund created under R.A. No. 6447
collected in the province or city on real property
situated in their respective territorial jurisdictions
shall be distributed as follows:
(1) Collections in the provinces: Fifty-five percent shall accrue
to the municipality where the property subject to the tax is
situated; twenty-five percent shall accrue to the province; and
twenty percent shall be remitted to the Treasurer of the
Philippines. (as amended by PD No. 1969).
xxx xxx xxx
(c) The proceeds of all delinquent taxes and penalties, as well
as the income realized from the use, lease or other disposition
of real property acquired by the province or city at a public
auction in accordance with the provisions of this Code, and the
proceeds of the sale of the delinquent real property or of the
redemption thereof, shall accrue to the province, city or
municipality in the same manner and proportion as if the tax or
taxes had been paid in regular course.
xxx xxx xxx (Emphasis supplied)
The foregoing provisions clearly show that local government units may levy
and collect real property tax ranging from a low of one-fourth of one percent
(0.25%) to a high of two percent (2.0%) of the assessed value of real property
depending on the local government unit levying the same. It is likewise clear
that a province, a municipality and a city may each separately levy said tax on
real property located within their respective jurisdictions but not exceeding the
rates prescribed under Sec. 39 of PD No. 464.
And apart from said basic tax; the law authorizes the collection of an
additional tax equivalent to one percent (1.0%) of the assessed value of the
real property to accrue to the Special Education Fund (SEF).
In accordance with the authority confirmed upon them by PD No. 464, the
following tax resolutions or ordinances were passed:
By the province —
Resolution No. 30, series of 1974, of the Provincial Board of Albay, enacting
Provincial Tax Ordinance No. 4 whose Section 1, provides:
There shall be levied, assessed and collected an annual ad
valorem tax on real properties including improvements thereon
equivalent to one-half of one percent of the assessed value of
real property.
By the Municipality of Tiwi —
Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay,
whose Section 2 provides:
That the tax rate of real property shall be one-half of one
percent of the assessed value of real property.
By the Municipality of Daraga —
Josef Elvin Campos
Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga,
Albay, whose Section 3 provides:
Rates of Levy — The tax herein levied is hereby fixed at one-
half of one percent (1/2 of 1%) of the assessed value of real
property. (see Exhs. 50-G; Emphasis supplied).
Applying said rates of levy, the real property taxes collectible from the NPC
are:
1. A basic tax of 1%, levied by the Province (0.5%) and Tiwi
(0.5%) on the one hand; and the Province (0.5%) and Daraga
(0.5%) on the other; and
2. The additional 1% tax pertaining to the SEF.
or a total of 2.0% on the assessed value of NPC's real properties.
On the other hand, sharing on said taxes, shall be as follows:
1. On the basic tax:
Province 47.5%
Municipality 47.5%
Barangay 5.0%
———
Total 100.0%
2. On the additional tax pertaining to the SEF:
Province 25.0%
Municipality 55.0%
National Government 20.0%
———
Total 100.0%
In real terms, the P40,724,471.74 in payments earlier made by NPC should
be shared by the Province, Tiwi and Daraga, the concerned barangays and
the national government, as follows:
Province Municipalities Barangay Natl. Govt.
Basic Tax
P 9,672,062.04 9,672,062.04 1,018,111.79 none
SEF
4,072,447.18 10,181,117.93 none 6,108,670.76
————— ————— ————— —————
Total
P13,744,509.22 19,853,179.97 1,018,111.79 6,108,670.76
=========== ========== ========= =========
This shows that the Province is entitled only to P13,744,509.21 of the
P40,724,471.74 aggregate payments by NPC. On the other hand, the
balance of P26,979,962.52 represents the collective shares of Tiwi, Daraga,
the concerned barangays and the national government.
The Province maintains, however, that considering that it acquired ownership
over the properties of NPC subject matter of the auction, all the payments to
be made by NPC under the MOA should accrue exclusively to the Province.
This is untenable. The law clearly provides that "the proceeds of
all the delinquent taxes and penalties as well as the income realized from
the . . . disposition of real property acquired by the province or city at a public
auction . . ., and the sale of delinquent property or the redemption
thereof shall accrue to the province, city or municipality in the same manner
and proportion as if the tax or taxes have been paid in the regular course"
(Sec. 87(c) supra.).
It is immaterial that the Province was the highest bidder and eventually
became the owner of the properties sold at the auction sale. What is essential
is that the proceeds of the re-sale of said properties acquired by the Province,
be distributed in the same manner and proportion among the rightful
beneficiaries thereof as provided by law.
This was the import and essence of Chief Presidential Legal Counsel Carpio's
opinion when he stated that the sharing scheme provided by law cannot be
amended by a mere agreement between the taxpayer, in this case NPC, and
the collecting authority, in this instance, the Province of Albay.
Likewise, it is axiomatic that while "contracting parties may establish
stipulations, clauses, terms and conditions as they may deem convenient",
Josef Elvin Campos
they may not do so if these are "contrary to law, morals, good customs, public
order or public policy" (Art 1306, New Civil Code.).
Also relevant to the discussion are the following provisions of the Local
Government Code of 1991:
Sec. 307. Remittance of Government Monies to the Local
Treasury. — Officers of local government authorized to receive
and collect monies arising from taxes, revenues, or receipts of
any kind shall remit the full amount received and collected to
the treasury of such Local government unit which shall be
credited to the particular account or accounts to which the
monies in question properly belong.
Sec. 308. Local Funds. — Every local government unit shall
maintain a General Fund which shall be used to account for
such monies and resources as may be received by and
disbursed from the local treasury. The General Fund shall
consist of monies and resources of the local government which
are available for the payment of expenditures, obligations or
purposes not specifically declared by law as accruing and
chargeable to, or payable from any other fund.
Sec. 309. Special Funds. — There shall be maintained in every
provincial, city, or municipal treasury the following special
funds:
(a) Special Education Fund (SEF) shall consist of the
respective shares of provinces, cities, municipalities and
barangays in the proceeds of the additional tax on real
property to be appropriated for purposes prescribed in Section
272 of this Code; and
(b) Trust Funds shall consist of private and public monies
which have officially come into the possession of the local
government or of a local government official as trustee, agent
or administrator, or which have been received as a guaranty for
the fulfillment of some obligation. A trust fund shall only be
used for the specific purpose for which it was created or for
which it came into the possession of the Local government unit.
These provisions are restatements of Sec. 3(4) and (5) of PD No. 1445 and
both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No. 292,
otherwise known as the "Administrative Code of 1987."
It is unmistakable from the foregoing provisions that the shares of Tiwi,
Daraga, the concerned barangays and the national government in the
payments made by NPC under the MOA, should be, as they are in fact, trust
funds. As such, the Province should have, upon receipt of said payments,
segregated and lodged in special accounts, the respective shares of Tiwi,
Daraga, the concerned barangays and the national government for eventual
remittance to said beneficiaries. Said shares cannot be lodged in, nor remain
part of, the Province's general fund. Moreover, the Province cannot utilize
said amounts for its own benefit or account (see also Sec. 86, PD No. 464, as
amended).
Therefore, the balance of P26,979,962.52 representing the collective shares
of Tiwi and Daraga, the concerned barangays and the national government,
cannot be appropriated nor disbursed by the Province for the payment of its
own expenditures or contractual obligations.
However, in total disregard of the law, the Province treated the
P40,724,471.74 NPC payments as "surplus adjustment" (Account 7-92-419)
and lodged the same in its general fund. No trust liability accounts were
created in favor of the rightful beneficiaries thereof as required by law.
Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office
(SAG) of the Commission on Audit (COA) further support our findings, thus —
xxx xxx xxx
Part II. Findings and Observations
The audit findings, which are discussed in detail in the attached report, are
summarized below:
Josef Elvin Campos
1. The remittances of the NPC of the P40,724,471.74 from July
to December 1992 representing partial payments of real tax
delinquencies from June 22, 1984 to March 10, 1989, were not
shared with the Municipalities of Tiwi, Daraga, and the
concerned barangays and the National Government in violation
of PD 464. The Memorandum of Agreement entered into
between the Province of Albay and Napocor cannot amend the
provisions of PD 464 which specifies the sharing scheme of the
real property tax among the province, city or municipality where
the property subject to tax is situated and the National
Government.
xxx xxx xxx
2. The collection of P40,724,471.74 was fully treated as surplus
adjustment (Account 7-92-419) being prior years income,
without creating a trust liability for the municipality and
barangays concerned and national government. As of
December 31, 1992, the balance of the account was only
P25,668,653.12 thus, stressing that P15,255,818.62 was spent.
. . . Under the General Fund, cash available was only
P4,921,353.44 leaving practically no cash to answer for the
shares of the Municipalities of Tiwi and Daraga and their
barangays where the properties are located. (pp. 4 and 16;
xxx xxx xxx
As pointed our earlier, the Province was entitled only to P13,744,509.21 of
the P40,724,471.74 in payments made by NPC. Thus, it may only appropriate
and disburse P13,744,509.21. Any disbursements exceeding this amount
would therefore be illegal.
This Committee particularly notes the factual finding of COA that as of 31
December 1992, the actual cash balance of the Province's general fund was
only P4,921,353.44. This means that of the P40,724,471.74 actually paid by
the NPC and lodged in the Province's general fund, P35,803,118.30 was
disbursed or spent by the Province. This exceeds the P13,744,509.21 share
of the Province by P22,058,609.09.
The foregoing may be illustrated as follows:
NPC Payments received by
the Province P40,724,471.74
Less Actual Cash Balance
general fund
as of 12-31-92 4,921,353.44
——————
P35,803,118.30
===========
Less Share of the Province 13,744,509.21
Amount Illegally Disbursed
by the Province P22,058,609.09
===========
We have already shown that Ordinance No. 09-92 (Exhs. K to K-1) declaring
as forfeited in favor of the Province the entire amount of P40,724,471.74 paid
by NPC to be patently illegal as it unlawfully deprives Tiwi and Daraga, the
barangays concerned, and the national government of their rightful shares in
said payments. Being illegal, said ordinance may not be used or relied upon
by the respondents to justify the disbursements of funds in excess of their
share.
Neither may Resolution Nos. 178-92 and 204-92 be used to justify the
disbursements considering that the appropriations made thereunder totalling
P27,442,364.51 are to be funded by the P40,724,471.74 "surplus adjustment"
that includes the "trust funds" not belonging to the Province. Even assuring
that Resolution No. 178-92 authorizing the expenditure of P9,778,912.57
were to be taken from the Province's share amounting to P13,744,509.21, the
rest of the disbursements still have no legal basis. Clearly, this is violative of
the fundamental rule that "(n)o money shall be paid out of the local treasury
Josef Elvin Campos
except in pursuance of an appropriation ordinance or law" (par [a], Sec. 305,
Republic Act No. 7160).
Respondents raise the common defense that the findings obtained in SAO
Report No. 93-11 are not yet final as they have filed an appeal therefrom.
It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised
by the respondents to COA merely involve questions of law, i.e., as to
whether the Province alone should be entitled to the payments made by NPC
under the MOA, and whether the shares of Tiwi and Daraga, the concerned
barangays, and the national government, should be held in trust for said
beneficiaries.
Considering that the factual findings under SAO Report 93-11 are not
disputed, this Committee has treated said factual findings as final or, at the
very least, as corroborative evidence.
Respondents' contention that COA's factual findings, contained in SAO
Report No. 93-11 cannot be considered in this investigation is untenable. For
no administrative or criminal investigation can proceed, if a respondent is
allowed to argue that a particular COA finding is still the subject of an appeal
and move that the resolution of such administrative or criminal case be held
in abeyance. This will inevitably cause unnecessary delays in the
investigation of administrative and criminal cases since an appeal from a
COA finding may be brought all the way up to the Supreme Court.
Besides, the matters raised by the respondents on appeal involve only
conclusions/interpretation of law. Surely, investigative bodies, such as COA,
the Ombudsman and even this Committee, are empowered to make their own
conclusions of law based on a given set of facts.
Finally, sufficient evidence has been adduced in this case apart from the
factual findings contained in SAO Report, 93-11 to enable this Committee to
evaluate the merits of the instant complaint.
We also reject respondent Azaña's defense that since he did not participate in
the deliberation and passage of Resolution No. 09-92, merely signing the
same as presiding officer of the Sangguniang Panlalawigan, and only
certifying that the same had been passed, he did not incur any administrative
liability.
The fact remains that as presiding officer of the Sangguniang Panlalawigan
and being the second highest official of the Province, respondent Azaña is
jointly responsible with other provincial officials in the administration of fiscal
and financial transactions of the Province. As presiding officer of the
Sangguniang Panlalawigan, respondent Azaña has a duty to see to it that
resolutions or ordinances passed are within the bounds of the law. He cannot
merely preside over the sessions of the Sangguniang Panlalawigan unmindful
of the legality and propriety of resolutions or ordinances being proposed or
deliberated upon by his colleagues.
This collective responsibility is provided under Secs. 304 and 305 of Republic
Act. No. 7160, thus —
Sec. 304. Scope. — This Title shall govern the conduct and
management of financial affairs, transactions and operations of
provinces, cities, municipalities, and barangays.
Sec. 305. Fundamental Principles. — The financial affairs,
transactions, and operations of local government units shall be
governed by the following fundamental principles:
xxx xxx xxx
(1) Fiscal responsibility shall be shared by all those exercising
authority over the financial affairs, transactions, and operations
of local government units; and
xxx xxx xxx (Emphasis supplied)
It cannot be denied that the Sangguniang Panlalawigan has control over the
Province's "purse" as it may approve or not resolutions or ordinances
generating revenue or imposing taxes all well as appropriating and
authorizing the disbursement of funds to meet operational requirements or for
the prosecution of projects.
Being entrusted with such responsibility, the provincial governor, vice-
governor and the members of the Sangguniang Panlalawigan, must always
be guided by the so-called "fundamental" principles enunciated under the
Josef Elvin Campos
Local Government Code, i.e., "No money shall be paid out of the local
treasury except in pursuance of an appropriations ordinance or law; local
revenue is generated only from sources authorized by law or ordinance and
collection thereof shall at all times be acknowledged properly; all monies
officially received by a local government officer in any capacity or on any
occasion shall be accounted for as local funds, unless otherwise provided by
law; and trust funds in the local treasury shall not be paid out except in
fulfillment of the purposes for which the trust was created or the funds
received" (Sec. 305, R.A. 7160).
All the respondents could not claim ignorance of the law especially with
respect to the provisions of PD No. 464 that lay down the sharing scheme
among local government units concerned and the national government, for
both the basic real property tax and additional tax pertaining to the Special
Education Fund. Nor can they claim that the Province could validly forfeit the
P40,724,471.74 paid by NPC considering that the Province is only entitled to
a portion thereof and that the balance was merely being held in trust for the
other beneficiaries.
As a public officer, respondent Azaña (and the other respondents as well) has
a duty to protect the interests not only of the Province but also of the
municipalities of Tiwi and Daraga and even the national government. When
the passage of an illegal or unlawful ordinance by the Sangguniang
Panlalawigan is imminent, the presiding officer has a duty to act accordingly,
but actively opposing the same by temporarily relinquishing his chair and
participating in the deliberations. If his colleagues insist on its passage, he
should make known his opposition thereto by placing the same on record. No
evidence or any sort was shown in this regard by respondent Azaña.
Clearly, all the respondents have, whether by act or omission, denied the
other beneficiaries of their rightful shares in the tax delinquency payments
made by the NPC and caused the illegal forfeiture, appropriation and
disbursement of funds not belonging to the Province, through the passage
and approval of Ordinance No. 09-92 and Resolution Nos. 178-92 and 204-
92.
The foregoing factual setting shows a wanton disregard of law on the part of
the respondents tantamount to abuse of authority. Moreover, the illegal
disbursements made can qualify as technical malversation.
This Committee, thus, finds all the respondents guilty of abuse of authority,
and acccordingly, recommends the imposition of the following penalties of
suspension without pay:
a. Respondent Salalima — five (5)
months; and
b. All the other
respondents — four (4)
months each.
II. OP Case No. 5469
This refers to the administrative complaint filed against Albay Governor
Romeo Salalima, Vice-Governor Danilo Azaña, Albay Sangguniang
Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana,
Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla,
Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal
services entered into between the Province of Albay, on the one hand, and
Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and
the disbursement of public fund in payment thereof. The complaint was
docketed as OP Case No. 5469.
The antecedent facts are as follows.
Because of the refusal by the National Power Corporation ("NPC") to pay real
property taxes assessed by the Province of Albay ("the Province") covering
the period from 11 June 1984 up to 10 March 1987 amounting to
P214,845,184.76, the Province sold at public auction the properties of NPC
consisting of geothermal power plants, buildings, machinery and other
improvements located at Tiwi and Daraga, Albay. The Province was the sole
and winning bidder at the auction sale.
Josef Elvin Campos
As NPC failed to redeem its properties sold at the auction, the Province
petitioned the Regional Trial Court in Tabaco, Albay to issue a writ of
possession over the same.
Sometime in 1989, NPC filed a petition with the Supreme Court, which was
docketed as G.R. No. 87479, questioning the validity of the auction sale
conducted by the Province. NPC claims, inter alia, that its properties are not
subject to real property tax.
On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal
officer of the Province, filed it; comment on the NPC petition with the
Supreme Court.
On 2 June 1989, the Albay Sangguniang Panlalawigan adopted Resolution
No. 129-89 (Exhs. B to B-1) authorizing respondent Governor to engage the
services of a Manila-based law firm to handle the case against NPC.
On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with the
Supreme Court as collaborating counsel for the Province in G.R. No. 87479.
The entry of appearance of Atty. Cornago bore the conformity of respondent
Governor.
On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes & Reyna
Law Firm sent respondent Governor a letter (Exhs. D to D-1) informing him
that Atty. Jesus R. Cornago, as collaborating counsel for the Province, has
filed a memorandum with the Supreme Court, suggesting that a retainer
agreement be signed between the Province, on the one hand, and Atty.
Cornago and Cortes & Reyna Law Firm, on the other hand, and setting forth
the conditions of the retainer agreement, thus:
As collaborating counsels for the respondents in the
aforementioned case, our law firm and that of Atty. Jesus R.
Cornago request that you pay us an Acceptance Fee of FIFTY
THOUSAND (P50,000.00) PESOS, while the aforementioned
case is pending in the Supreme Court. Thereafter, we will
charge you a contingent fee equivalent to eighteen percent
(18%) of the value of the property subject matter of the case
which is P214 million, payable to us in the event that we obtain
a favorable judgment for you from the Supreme Court in the
case. Xerox expenses for copies of motions, memorandum and
other matters to be filed with the Supreme Court in the case,
together with xerox copies of documentary evidence, as well as
mailing expenses, will be for your account also.
On 8 January 1990, the Albay Sangguniang Panlalawigan passed Resolution
No. 01-90 (Exhs. C to C-1) authorizing respondent Governor to sign and
confirm the retainer contract with the Cortes & Reyna Law Firm.
Respondent Salalima signed the retainer agreement.
On 4 June 1990, the Supreme Court issued a decision dismissing the NPC
petition and upholding the validity of the auction sale conducted by the
province to answer for NPC's tax liabilities.
Subsequently, the following payments amounting to P7,380,410.31 (Exhs. E
to N-1) were made by the Province to Atty. Antonio Jose Cortes and Atty.
Jesus R. Cornago:
Particulars Claimant/Payee Amount
Disbursement Cortes & Reyna P 60,508.75
Voucher (DV No. 4,
Jan. 8, 1990 Check No.
931019
DV No. 1889 Atty. Antonio Jose Cortes P 1,421,040.00
Aug. 13, 1992;
Check No. 236063-S
DV No. 1890 Atty. Jesus R. Cornago P 1,736,300.00
Aug. 13, 1992;
Check No. 236064-S
DV No. 2151 Atty. Antonio Jose Cortes P 838,851.44
Sept. 28, 1992;
Check No. 238174-S
Josef Elvin Campos
Oct. 8, 1992;
Check No. 239528-S
DV No. 2227 Atty. Jesus R. Cornago P 341,024.00
Oct. 8, 1992;
Check No. 239529-S
Nov. 6, 1992;
Check No. 250933
Dec. 9, 1992;
Check No. 253163
Dec. 9, 1992;
Check No. 253163
Dec. 9, 1992;
Check No. 253164
——————
TOTAL P 7,380,410.31
Disbursement Voucher Nos. 2474 and 2475 were approved by respondent
Azaña. The rest were approved by respondent Governor.
In a letter dated 31 May 1993 (Exh. O) and certificate of settlement and
balances dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay
informed respondent Governor that payments made by the Province as
attorney's fees amounting to P7,380,410.31 have been disallowed by the
Commission on Audit (COA) with the following notation:
The disbursement vouchers detailed hereunder represent
payments for attorney's fees of Cortes & Reyna Law Office for
Legal services rendered re: G.R. No. 87479 "NAPOCOR,
Petitioner vs. The Province of Albay, et al., Respondent,"
Supreme Court, en banc. Total payments of P7,380,410.31 are
disallowed for lack of the requisite "prior written conformity and
acquiescence of the Solicitor General . . . as well as the written
concurrence of the Commission on Audit" as provided for and
required under COA Circular No. 86-255 dated April 2, 1986,
re: "Inhibition against employment by government: agencies
and instrumentalities . . . of private lawyers to handle their legal
cases," viz.
The complaint alleges that by entering into the retainer agreement with
private lawyers and paying P7,380,410.31 to the said private lawyers,
respondents violated several provisions of law which warrants the imposition
of administrative penalties against them. It is to be noted that respondents
Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the
Sangguniang Panlalawigan when Resolution No. 129 was passed. However,
the complaint alleges that these respondents were named in the complaint
because they approved the supplemental budget/appropriation ordinances
providing for the payment of the attorney's fees.
The sole issue in this case is whether or not respondents have incurred
administrative liability in entering into the retainer agreement with Atty.
Cornago and the Cortes & Reyna Law Firm and in making payments
pursuant to said agreement for purposes of the case filed by NPC with the
Supreme Court against the province.
We find merit in the complaint and hold that under the circumstances
surrounding the transaction in question, the respondents abused their
authority.
Sec. 481 of the Local Government Code (RA. No. 7160) requires the
appointment of a legal officer for the province whose functions include the
following:
Represent the local government unit in all civil actions and
special proceedings wherein the local government unit or any
official thereof, in his official capacity is a party; Provided, That,
in actions or proceeding where a component city or municipality
is a party adverse to the provincial government or to another
Josef Elvin Campos
component city or municipality, a special legal officer may be
employed to represent the adverse party.
The Supreme Court has ruled in Municipality of Bocaue, et al. v. Manotok, 93
Phil 173 (1953), that local governments [sic] units cannot be represented by
private lawyers and it is solely the Provincial Fiscal who can rightfully
represent them, thus:
Under the law, the Provincial Fiscal of Bulacan and his
assistants are charged with the duty to represent the province
and any municipality thereof in all civil actions . . .
It would seem clear that the Provincial Fiscal is the only
counsel who can rightfully represent the plaintiffs and therefore,
Attys. Alvir and Macapagal [the private lawyers hired by the
Province of Bulacan] have no standing in the case. The appeal
herein interposed in behalf of the plaintiffs cannot therefore be
maintained.
This ruling applies squarely to the case at hand because Sec. 481 of the
Local Government Code is based on Sec. 1681 of the Revised Administrative
Code which was the subject of interpretation in the abovecited case
of Municipality of Bocaue, et al. v. Manotok.
In hiring private lawyers to represent the Province of Albay, respondents
exceeded their authority and violated the abovequoted section of the Local
Government Code and the doctrine laid down by the Supreme Court.
Moreover, the entire transaction was attended by irregularities. First, the
disbursements to the lawyers amounting to P7,380,410.31 were disallowed
by the Provincial Auditor on the ground that these were made without the
prior written conformity of the Solicitor General and the written concurrence of
the Commission on Audit (COA) as required by COA Circular No. 86-255
dated 2 April 1986.
The respondents attempted to dispute this finding by presenting the Solicitor
General's conformity dated 15 July 3993. This conformity was, however
obtained after the disbursements were already made in 1990 and 1992. What
is required by COA Circular No. 85-255 is a prior written conformity and
acquiescence of the Solicitor General.
Another irregularity in the transaction concerns the lawyers. Resolution No.
01-90 authorized the respondent Governor to sign and confirm a retainer
contract for legal services with the Cortes & Reyna Law Firm at 202 E.
Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent
Governor was, however, not only with the Cortes & Reyna Law Firm but also
with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato
Avenue, Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna
Law Firm are two separate entities is evident from the retainer contract itself:
As collaborating counsels for the respondents in the
aforementioned case, our law firm and that of Atty. Jesus
R. Cornago request that you pay us an Acceptance Fee of
FIFTY THOUSAND (P50,000.00) PESOS, while the
aforementioned case is pending in the Supreme Court.
Thereafter, we will charge you a contingent fee equivalent to
eighteen percent (18%) of the value of the property subject
matter of the case which is P214 Million, payable to us in the
event we obtain a favorable judgment for you from the
Supreme Court in the case. Xerox expenses for copies of
motions, memorandum and other matters to be filed with the
Supreme Court in the case, together with xerox copies of
documentary evidence, as well as mailing expenses, will be for
your account also.
xxx xxx xxx
Very
truly
yours,
CORT
ES &
REYN
A
Josef Elvin Campos
LAW
FIRM
-and-
Atty.
JESU
S R.
CORN
AGO
Jamec
ca
Buildin
g
280
Tomas
Morato
Avenu
e
by:
(Sgd.)
ANTO
NIO
JOSE
F.
CORT
ES
With my conformity:
(Sgd) GOV. ROMEO R. SALALIMA
Province of Albay
(emphasis supplied.)
In entering into a retainer agreement not only with the Cortes & Reyna Law
Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded his
authority under Resolution No. 01-90.
Complicating further the web of deception surrounding the transaction is the
fact that it was only Atty. Cornago who appeared as collaborating counsel of
record of the Province in the Supreme Court case (G R. No. 87479). We
quote the entry of appearance of Atty. Cornago in full in said case:
APPEARANCE
COMES NOW, the undersigned counsel, and to this Honorable
Supreme Court, respectfully enters his appearance as counsel
for the respondents in the above-entitled case, in collaboration
with Atty. Romulo L. Ricafort, counsel of record for the
respondents. This appearance bears the conformity of the
respondent Gov. Romeo R. Salalima, as shown by his
signature appearing at the space indicated below. In this
connection, it is respectfully requested that, henceforth, the
undersigned counsel be furnished with a copy of all notices,
orders, resolutions and other matters that may be issued in this
case at its office address indicated below.
Quezon City, for Manila, August 24, 1989.
(Sgd.)
JESU
S R.
CORN
AGO
Couns
el for
Respo
ndents
280
Tomas
Morato
Avenu
e
Josef Elvin Campos
Quezo
n City
PTR
No.
56100
5-'89
Manda
luyong
IBP
No.
27935
1-'89
Pasig,
MM
With my conformity:
(Sgd) ROMEO R. SALALIMA
Respondent
Office of the Governor of Albay
Legaspi City
Even the Solicitor General, in his letter to respondent Governor dated 15 July
1993, noted that the Province is represented in the Supreme Court by Attys.
Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna Law
Firm, thus:
Incidentally, a check with our office records of the case G.R.
No. 87479 reveals that the Province of Albay and its officials
named respondents therein were represented in the Supreme
Court by Atty. Romulo Ricafort the Province's Legal Officer II,
and Attys. Jesus R. Cornago and Glenn Manahan of
JAMECCA Building, 280 Tomas Morato Avenue, Quezon
City; no appearance was entered therein by the Cortes &
Reyna Law Firm. (Emphasis supplied.)
Furthermore, the memorandum with the Supreme Court filed for the Province
was signed by Atty. Cornago and not by the Cortes & Reyna Law Firm.
Consequently, the Cortes & Reyna Law Firm was not counsel of record of the
Province in G.R. No. 87479. And yet, six of the ten checks paid by the
Province and amounting to more than P3.6 million were issued in favor of the
Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words,
respondents disbursed money to the Cortes & Reyna Law Firm although the
latter did not appear as counsel for the Province in the Supreme Court in G.R.
No. 87479.
Finally, the attorney's fees agreed upon by respondent Salalima and
confirmed by the other respondents are not only unreasonable but also
unconscionable. The contingent fee of 18% of the "P214 million" claim of the
Province against NPC amounts to P38.5 million. The word "unconscionable",
as applied to attorney's fee, "means nothing more than that the fee contracted
for, standing alone and unexplained would be sufficient to show that an unfair
advantage had been taken of the client, or that a legal fraud had been taken
of the client, or that a legal fraud had been perpetrated on him."
(Moran, Comments on the Rules of Court, Vol. 6, p. 236.)
The Province has a legal officer, Atty. Ricafort, who had already filed a
comment on NPC's petition against the Province. The comment filed by Atty.
Ricafort already covers the basic issues raised in the petition. When Atty.
Cornago filed an appearance and subsequently a memorandum for the
Province, the petition was already been given due course by the Supreme
Court and the only pleading to be filed by the parties before the Court would
issue its decision was a memorandum. Surely, one memorandum could not
be worth P38.5 million.
Furthermore, the professional character and social standing of Atty. Cornago
are not such as would merit a P38.5 million fee for the legal services
rendered for the Province. During the hearing, respondent Governor admitted
that he had hired Atty. Cornago because they were schoolmates at San Beda
College, thus:
SECRETARY CORONA:
Josef Elvin Campos
May I ask a question Governor, what was your basis for
choosing this particular law office? Why not ACCRA, why not
Sycip Salazar, why not Carpio Villaraza, why this particular Law
office? Frankly, I never heard of this law office. Who
recommended it?
GOVERNOR SALALIMA:
Atty. Cornago was then a graduate of San Beda and I am a
graduate of San Beda.
SECRETARY CORONA:
Were you classmates?
GOVERNOR SALALIMA:
No.
SECRETARY CORONA:
How many years apart were you?
GOVERNOR SALALIMA:
Two (2) years.
SECRETARY CORONA:
So, you knew each other from the law school?
GOVERNOR SALALIMA:
Yes.
SECRETARY CORONA:
Were you members of the same fraternity in San Beda?
GOVERNOR SALALIMA:
Yes.
(TSN, 12 July 1992, pp. 27-29.)
It is evident that respondent Governor hired Atty. Cornago not on the basis of
his competency and standing in the legal community but purely for personal
reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such
as would merit P38.5 million for one memorandum, which, in this case, it had
not even filed because it was not the counsel of record. Hence, considering
the labor and time involved, the skill and experience called for in the
performance of the services and the professional character and social
standing of the lawyers, the attorney's fee of P38.5 million is unconscionable.
By allowing such scandalously exorbitant attorney's fees which is patently
disadvantageous to the government, respondents betrayed a personal bias to
the lawyers involved and committed abuse of authority.
Parenthetically, the retainer contract containing such exorbitant attorney's
fees may also be violative of the following: (a) COA Circular No. 85-55-A (8
September 1985) prohibiting irregular, unnecessary, excessive or extravagant
expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of RA No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act.
Finally, the Committee again applies in this case, as was applied in OP Case
No. 5470, the rule of joint responsibility as enunciated under Sec. 305 (1) of
the Local Government Code.
In view of the foregoing, the Committee holds that respondents committed
abuse of authority under Sec. 60(e) of the Local Government Code for the
following:
1. Hiring private lawyers, in violation of Sec. 481 of the Local
Government Code, to handle the case of the Province of Albay
before the Supreme Court in G.R. No. 87479;
2. Disbursing public money in violation of COA rules and
regulations;
3. Paying the Cortes & Reyna Law Firm public money although
it was only Atty. Cornago who was the counsel of record of the
Province of Albay in the Supreme Court case;
4. Authorizing an unconscionable and grossly disadvantageous
attorney's fees of P38.5 million; and
5. Additionally, as to respondent Governor, entering into a
retainer agreement not only with the Cortes & Reyna Law Firm
but also with Atty. Cornago, thus exceeding his authority under
Resolution No. 01-90 passed by the Sangguniang
Panlalawigan.
Josef Elvin Campos
After taking all the attendant circumstances into consideration, the Committee
recommends that the following penalties of suspensions without pay be
meted out:
a. Respondent Salalima — six (6) months;
and Azaña each; and
b. All the other
respondents — four (4) months
each.
III. OP Case No. 5471
This refers to the administrative complaint filed by the Tiwi Mayor Naomi
Corral against Albay Governor Romeo Salalima, Albay Sangguniang
Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Jesus
Marcellana, Nemesio Baclao, Ramon Fernandez, Jr., Masikap Fontanilla,
Vicente Go, Sr., Wilbor Rontas and Clenio Cabredo, and Tiwi Vice-Mayor
Rodolfo Benibe for "abuse of authority and oppression" under Sec. 60 (c) and
(e) of RA No. 7160.
On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi
Sangguniang Bayan charged herein respondent Governor Salalima and Vice-
Governor Azaña for abuse of authority, misconduct in office and oppression.
This administrative complaint, initially docketed as OP Case No. 4982 (DILG
Adm. Case No. P-8-93), arose from the refusal of said respondents to remit
Tiwi's share in the P40,724,471.74 tax delinquency payments made by NPC.
This case was subsequently substituted by OP Case No. 5470 filed on 25
January 1993 which now included as respondents Albay Sangguniang
Panlalawigan Members Victoria, Reyeg, Osia, Cabredo, Go, Marcellana,
Fernandez, Fontanilla, and Rontas.
Subsequently, Mayor Corral became the subject of several administrative and
criminal complaints filed by certain individuals with the following offices:
a. Achilles Berces v. Mayor Naomi Corral
(1) Albay Sangguniang Panlalawigan, Adm. Case No. 02-92
(3) Office of the Ombudsman, OMB Adm. Case No. 1930163
(4) Office of the Ombudsman, OMB Case No. 0930682
(5) Office of the Ombudsman, OMB-092-3008
b. Muriel Cortezano v. Mayor Naomi Corral
(7) Office of the Ombudsman, OMB-0-92-3000
c. Amelia Catorce v. Mayor Naomi Corral
d. Aida Marfil v. Mayor Naomi Corral
(10) Office of the Ombudsman, OMB Case No. 5-93-0110
e. Rodolfo Belbis v. Mayor Naomi Corral
(12) Office of the Ombudsman, OMB Case No. 0-93-0098
f. Kin. Juan Victoria, et al. v. Mayor Naomi Corral
(13) Office of the Prosecutor, I.S. No. 93-046 (for Libel), Legaspi City
g. Governor Romeo Salalima, et al. v. Mayor Naomi Corral
(14) Office of the Prosecutor, I.S. No. 93-044 (for Libel and Perjury), Legaspi
City
(15) Office of the Prosecutor, I.S. No. 93-045 (for Libel and Perjury), Legaspi
City
or a total of fifteen (15) cases.
On 7 January 1993, the respondent-members of the Sangguniang
Panlalawigan passed Omnibus Resolution No. 2 recommending that Mayor
Corral be placed under preventive suspension for sixty (60) days pending the
resolution of Adm. Case No. 05-92 (Exh. 18).
On 11 January 1993, respondent Salalima approved said resolution and, on
the same date, officially directed herein respondent Tiwi Vice-Mayor Benibe
to assume the office and discharge the functions of Tiwi Mayor (Exh. 18).
On 21 January 1993, Department of the Interior and Local Government
(DILG) Secretary Rafael Alunan III directed the lifting of the 11 January 1993
Josef Elvin Campos
suspension order issued by respondent Salalima. In his letter to Mayor Corral
(Exh. C), he stated, thus:
Considering that the preventive suspension imposed upon you
by Governor Romeo R. Salalima of that province, was issued
after the latter's refusal to accept your answer, therefore, the
issuance of subject order of preventive suspension is
premature, the issues having not been joined.
In view thereof, the Order of Preventive Suspension dated 11
January 1993, issued by Governor Salalima, is hereby lifted.
On 26 January 1993, the Office of the President (OP), acting in OP Case No.
4982, after finding that "the evidence of guilt is strong, and given the gravity
of the offense and the great probability that the continuance in office of
respondent Governor Romeo R. Salalima would influence the witnesses or
pose a threat to the safety and integrity of the records and other evidence,"
placed respondent Salalima under preventive suspension for sixty (60) days
(Exhs. D to D-2).
Respondent Salalima subsequently sought the reversal of the OP Order
dated 26 January 1993 but the same was dismissed by the Supreme Court
on 26 May 1993 in the case entitled "Salalima v. the Hon. Executive
Secretary," G.R. No. 108585 (Exh. E).
On 2 February 1993, Mayor Corral filed a motion to inhibit the respondents
from hearing the six cases filed against her with the Sangguniang
Panlalawigan (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93 and 10-93)
asserting her constitutional right to due process of law. This motion was
however denied with the respondent-members of the Sangguniang
Panlalawigan assuming jurisdiction over the cases.
After conducting marathon hearings, respondent-members of the
Sangguniang Panlalawigan rendered judgments against Mayor Corral and
imposing, among others, the following penalties of suspension:
1. In Adm. Case No. 02-92 — suspension for two (2) months (see Decision
dated 1 July 1993, [Exhs. F to F-2]);
2. In Adm Case No. 05-92 — suspension for three (3) months (see
Resolution dated 5 July 1993, [Exhs. G to 6-2]);
3. In Adm Case No. 06-93 and 07-93 — suspension for one (1) month (see
Resolution dated 8 July 1993, [Exhs. H to H-3]); and
4. In Adm Case No. 10-93 — suspension for the period of unexpired term
(see Resolution dated 9 July 1993, [Exhs. I to I-21).
On 22 July 1993, respondent Salalima issued a directive addressed to the
Provincial Treasurer, Provincial Auditor, PNP Provincial Director, Provincial
Assessor, Provincial Accountant, Provincial Budget Officer, Provincial DILG
Officer, the Sangguniang Panlalawigan and Provincial Prosecutor enjoining
them to assist in the implementation of the decisions suspending Mayor
Corral "by decreeing directives to your subordinate officials in Tiwi, Albay to
strictly adhere thereto."
Subsequently, Mayor Corral interposed appeals from the decisions of
respondent-members of the Sangguniang Panlalawigan suspending her from
office to the OP (docketed as OP Case Nos. 5337 and 5345) with a prayer
that the implementation of said decisions be stayed.
On 28 July 1993, the OP ordered the suspension/stay of execution of the
decisions in Adm. Case Nos. 02-92 and 05-92 (Exhs. J to 5-2).
Similarly, on 3 August 1993, the OP ordered the suspension/stay of execution
of the decisions in Adm. Case Nos. 06-93, 07-93 and 10-93 (Exhs. K to K-1).
Also, with respect to Adm. Case Nos. 6-93 and 7-93, the Civil Service
Commission (CSC) issued Resolution Nos. 93-005 (dated 5 January 1993)
and 92-817 (dated 4 March 1993), which provided the bases and justifications
for the acts of Mayor Corral complained of in these two (2) cases. The
Supreme Court subsequently affirmed said CSC resolutions (Exhs. L to L-2).
In the multiple charges for libel and perjury against Mayor Corral, arising from
her complaint in OP Case No. 5470, filed with the Regional Trial Court of
Legaspi City, the Supreme Court ordered the lower court to cease and desist
from proceeding with the case in a resolution dated 16 September 1993
(Exhs. Q to Q-2).
Josef Elvin Campos
In determining whether respondents are guilty of the charges levelled against
them, the following issue has to be resolved, i.e., whether the conduct of the
proceedings in the administrative cases filed and the series of suspension
orders imposed by the respondent-members of the Sangguniang
Panlalawigan on Mayor Corral constitute oppression and abuse of authority?
Oppression" has been defined as an "act of cruelty, severity, unlawful
exaction, domination or excessive use of authority." (Ochate v. Ty Deling, L-
13298, March 30, 1959, 105 Phil. 384, 390.).
"Abuse" means "to make excessive or improper use of a thing, or to employ it
in a manner contrary to the natural or legal rules for its use. To make an
extravagant or excessive use, as to abuse one's authority" (Black's Law
Dictionary <5th Ed.>, 11). It includes "misuse" (City of Baltimore v.
Cornellsville & S.P. Ry, Co. 6 Phils. 190, 191, 3 Pitt 20, 23).
Moreover, Section 63(d) of RA No. 7160 expressly states that, "[a]ny abuse of
the exercise of the powers of preventive suspension shall be penalized as
abuse of authority."
Now, does the above narration of facts show commission by respondents of
the administrative offenses complained of?
A review of the proceedings reveal that the same were marked by haste and
arbitrariness. This was evident from the start when Mayor Corral was
preventively suspended (in Adm. Case No. 05-92) even before she could file
her answer. In the other cases, respondent-members of Sangguniang
Panlalawigan ruled that Mayor Corral had waived her right to adduce
evidence in her defense.
Consequently, respondents did not also fully evaluate the evidences
presented to support the charges made. As such, all the decisions of
respondents suspending Mayor Corral were ordered lifted suspended by the
DILG and OP. Thus, even the cases filed with the Office of the Ombudsman,
which were based on the same incidents complained of in the said
administrative cases, were subsequently dismissed.
Respondents should have inhibited themselves from assuming jurisdiction
over said cases (Adm Case Nos. 02-92, O6-92, 06-93, 07-93, 09-93, and 10-
93) as timely moved by Mayor Corral considering that they were the
respondents in various administrative complaints she earlier filed with the OP
and with the DILG starting with OP Case No. 4892. However, despite the
violation of due process resulting from their collective acts, respondents, in
their determination and eagerness to suspend and harass Mayor Corral,
proceeded to hear and decide said cases.
The OP has no jurisdiction over administrative complaints filed against
elective municipal officials. Under Sec. 61(b) of RA No. 7160, "[a] complaint
against any elective official of a municipality shall be filed before the
Sangguniang Panlalawigan whose decision may be appealed to the Office of
the President."
WHEREFORE, the charges against Vice Mayor Benibe are dismissed.
However, all the other respondents herein are found guilty of oppression and
abuse of authority under Section 60 (c) and (e) of RA No. 7160. Accordingly,
it is recommended that each of them be meted the penalty of four (4) months
suspension without pay.
IV. OP Case No. 5450.
This refers to the administrative charges filed by Tabaco Mayor Antonio
Demetriou against Governor Romeo Salalima for violation of — Section 60,
pars. (c) and (d) of the Local Government Code, Section 3, par. (g) of
Republic Act No. 3019, and the provisions of PD No. 1594, as amended.
This case was filed with the Office of the President (OP) on 18 October 1993
and docketed as OP Case No. 5450.
The facts as found by this Committee are as follows:
On 27 September 1989 the Tabaco Public Market was destroyed by fire (Exh.
A, par. 1).
On 26 September 1990, the OP advised Mayor Demetriou and respondent
Salalima that the P12.0 Million in Budgetary Assistance to Local (Government
Units (BALGU) funds earlier remitted by the national government to the
Province, should be used for the rehabilitation of the Tabaco Public Market,
Josef Elvin Campos
and that the project should be implemented by the Provincial Governor in
consultation with the Mayor of Tabaco (Exh.. 37).
On 8 May 1991, a public bidding was conducted by the Albay Provincial
Government for the repair and rehabilitation of the Tabaco Public Market
(Exh. A, par. 1)
On 29 May 1991, the Province represented by respondent Salalima and RYU
Construction entered into a contract for P6,783,737.59 for said repair and
rehabilitation (Exh. H). Among others, the contract stipulated that the
contracted work should be completed in 150 days.
The contractor started the project on 1 July 1991 and completed the same on
2 June 1992 (Exh. 41).
On 6 March 1992, the Province represented by respondent Salalima entered
into another contract (Exh. I) for P4,304,474.00 with RYU Construction for
additional repair and rehabilitation works for the Tabaco Public Market. The
terms and conditions of this contract are the same as those stipulated in the
29 May 1991 contract except for the construction period which is only for 90
days.
Construction of the second project commenced on 27 March 1992 and was
completed on 2 June 1992 (Exh. 42).
In his complaint, Mayor Demetriou alleged that despite the delay in the
completion of work under the first contract, liquidated damages were not
imposed on, nor collected from, RYU Construction by the Province.
Moreover, he claims that the second contract with RYU Construction was
entered into in violation of PD No. 1594 as RYU incurred delay with respect to
the first contract.
We find merit in the complaint:
Pars. 1 and 2 of item CI 8, par. 1 of item CI 11, and par. 10.4.2 of item IB of
the Implementing Rules and Regulations (IRR) of PD No. 1594, as amended,
read:
CI 3 — LIQUIDATED DAMAGES.
1. Where the contractor refuses or fails to satisfactorily complete the work
within the specified contract time, plus any time extension duly granted and is
hereby in default under the contract, the contractor shall pay the Government
for Liquidated damages, and not by way of penalty, an amount to be
determined in accordance with the following formula for each calendar day of
delay, until the work is completed and accepted or taken over by the
Government:
xxx xxx xxx
2. To be entitled to such Liquidated, damages, the Government does not
have to prove that it has incurred actual damages. Such amount shall be
deducted from any money due or which may become due the contractor
under the contract and/or collect such Liquidated damages from the retention
money or other securities posted the contractor whichever is convenient to
the Government.
CI — Extension of Contract time.
1. Should the amount of additional work of any kind or other special
circumstances of any kind whatsoever occur such as to fairly entitle the
contractor to an extension of contract time, the Government shall determine
the amount of such extension; provided that the Government is not bound to
take into account any claim for an extension of time unless the contractor has
prior to the expiration of the contract time and within thirty (30) calendar days
after such work has been commenced or after the circumstances leading to
such claim have arisen, delivered to the Government notices in order that it
could have investigated them at that time. Failure to provide such notice shall
constitute a waiver by the contractor of any claim. Upon receipt of full and
detailed particulars, the Government shall examine the facts and extend of
the delay and shall extend the contract title for completing the contract work
when, in the Government's opinion, the finding of facts justify an extension.
xxx xxx xxx
IB 10.4.2 — By Negotiated Contract
1. Negotiated contract may be entered into only where any of the exists and
the implementing following conditions office/agency/corporation is not
capable of undertaking the project by administration:
Josef Elvin Campos
xxx xxx xxx
c Where the subject project is adjacent or contiguous to an ongoing project
and it could be economical prosecuted by the same contractor, in which case,
direct negotiation may be undertaken with the said contractor at the same unit
prices adjusted to price levels prevailing at the time of negotiation using
parametric formulae herein prescribed without the 5% deduction and contract
conditions, less mobilization cost, provided that he has no negative slippage
and has demonstrated a satisfactory performance. (Emphasis supplied).
xxx xxx xxx
A reading of items CI 8 and CI 11 above shows that the collection of
liquidated damages is mandatory in cases of delay unless there are valid
orders of extension of contract work given by the Government.
Under the 29 May 1991 contract, the repair works should have been
completed on 26 December 1991 since the project was started on 1 July. But
then the project was finished only on 2 June 1992.
This is confirmed by the COA through CAO Report No. 93-11 (Exh. N), thus
—
. . . The project was completed only on June 2, 1992 or a delay
of 132 working days, as shown in the following tabulation:
Billing As of Days Lapsed % Accomplished
First Dec. 2, 1991 130 26.48
Second Jan. 8, 1992 187 53.19
Third Feb. 10, 1992 100 75.23
Final June 2, 1992 202 100.00.
In view of the delays in project completion the Team requested
from the Provincial Engineer any copy of the order suspending
and resuming the work (suspension and resume order) since
the same was not, attached to the claims of the contractor or
paid vouchers. Unfortunately the Provincial Engineer could not
provide said document at the Engineering Office had not issued
any. In effect. there was no basis for the extension of contract
time and the contractor should have been considered as
behind schedule in the performance of the contract. Despite its
deficiency, no liquidated damages was ever imposed against
the contractor. (pp. 25-26) [emphasis supplied]
Respondent Salalima failed to submit an evidence concerning any order
issued by the Provincial Government extending RYU Construction's contract.
The law requires that requests for contract extension as well as the orders
granting the same must be made and given prior to the expiration of the
contract. The rationale for this requirement is obviously to prevent a
contractor from justifying any "delay" after the contract expires.
Before signing the 6 March 1992 contract, which was entered into on a
negotiated basis and not through bidding, respondent Salalima should have
inquired whether or not RYU Construction incurred negative slippage. Had he
done so, the matter of imposing and collecting liquidated damages would
have been given appropriate attention. This is aggravated by the fact that
respondent knew that RYU Construction was the contractor for the original
rehabilitation and repair work for the Tabaco Public market being the
signatory to the first contract.
Clearly, therefore, there was a failure on the part of the Province to impose
and collect liquidated damages from the erring contractor, RYU Construction.
Going to the second charge, we find that respondent Salalima unmistakably
violated the provision of PD No. 1594, as amended.
Fundamental is the rule that government contracts especially infrastructure
contracts are awarded only through bidding. As explicitly ordained by Sec. 4
of PD No. 1594, construction projects shall generally be undertaken by
contract after "competitive bidding". By its very nature and characteristic, a
competitive public bidding aims to protect the public interest by giving the
public the best possible advantages through open competition. At the same
time, bidding seeks to prevent or curtail favoritism, fraud and corruption in the
award of the contract which otherwise might prevail were the government
official concerned is vested with the full or absolute authority to select the
prospective contractor (Fernandez, Treatise on Government Contracts Under
Josef Elvin Campos
Philippine Law, 1991 Ed. citing Caltex Phil., Inc. v. Delgado Bros. 96 Phil.
368; San Diego v. Municipality of Naujan, 107 Phil. 118; and Matute v.
Hernandez, 66 Phil. 68).
This is precisely the reason why negotiated contracts can be resorted to only
in a few instances such as that provided under par. 1 (c) of item IB 10.4.2 of
the IRR' of PD No. 1594, supra. However, said proviso requires that the
contractor had not incurred negative slippage and has demonstrated a
satisfactory performance.
And since RYU Construction incurred negative slippage with respect to the
repair works under the 29 May 1991 contract as found by COA, it was
anomalous for the Province through respondent Salalima to enter into a
negotiated contract with said contractor for additional repair and rehabilitation
work; for the Tabaco public market. Failing to comply with the requirements of
law, the 6 March 1992 contract is clearly irregular, if not illegal.
Finally, said contract may also be violative of the following: (a) COA Circular
No. 85-55-A (dated 8 September 1985) prohibiting irregular expenditures or
uses of funds; and (b) Sec. 3 (e) and (g) of RA No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act.
Premises considered, this Committee finds the respondent guilty of abuse of
authority and gross negligence. Accordingly, it is recommended that the
penalty of suspension without pay be meted out on respondents Salalima for
five (5) months. (pp. 2-35).
The President then concluded and disposed as follows:
After a careful review of the cases, I agree with and adopt the findings and
recommendations of the Ad-Hoc Committee, supported as they are by the
evidence on record.
WHEREFORE, the following penalties are meted out on each of the
respondents, to wit:
In OP Case No. 5470 —
a. Governor Romeo Salalima — suspension without pay for five (5) months;
b. Vice-Governor Danilo Azana, Albay Sangguniang Panlalawigan members
Juan Victoria, Lorenzo Reyeg, Arturo Osia, CLenio Cabredo, Vicente Go, Sr.,
Jesus Marcellana, Ramon Fernandez, Jr., Masikap Fontanilla, and Wilbor
Rontas — suspension without pay for four (4) months.
a. Governor Romeo Salalima and Vice-Governor Danilo Azaña — suspension
without pay for six (6) months; and
b. Albay Sangguniang members Juan Victoria, Lorenzo Reyeg, Jesus
Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap
Fontilla, Vicente Go, Sr., and Nemesio Baclao — suspension without pay for
four (4) months;
a. Governor Romeo Salalima and Albay Sangguniang members Juan
Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Wilbor Rontas,
Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr.,
and Nemesio Baclao — suspension without pay for four (4) months;.
a. Governor Romeo Salalima — suspension without pay for five (5) months.
The suspension imposed on respondents shall be served successively but
shall not exceed their respective unexpired terms, in accordance with the
limitation imposed under Section 66 (b) of the Local Government Code.
It must at once be pointed out that insofar as O.P. Case No. 5471 is concerned, nothing of
its substantive aspect is challenged in this petition. The petitioners mentioned it only in their
claim of prematurity of Administrative Order No. 153 in view of their appeal from Special
Audit Office (SAO) Report No. 93-11 to the COA en banc. O. P. Case No. 5471 is the
administrative complaint, filed by Tiwi Mayor Corral against the petitioners for abuse of
authority and oppression in connection with their conduct in the several administrative
cases filed by certain individuals against Mayor Corral. It has no logical nexus to the appeal.
The decision then in O.P. Case No. 5471 stands unchallenged in this petition.
As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by the petitioners may
be reformulated in this wise:
Josef Elvin Campos
I. Did the Office of the President act with grave abuse of discretion amounting
to lack or excess of jurisdiction in suspending the petitioners for periods
ranging from twelve to twenty months?
II. Did the Office of the President commit grave abuse of discretion in
deciding O.P. cases Nos. 5450, 5469, and 5470 despite the pendency of the
petitioners' appeal to the COA en banc from Special Audit Office (SAO)
Report No. 93-11 and the Certificate of Settlement and Balances (CSB)?
III. Did the Office of the President commit grave abuse of discretion in holding
the petitioners guilty of abuse of authority in denying the Municipality of Tiwi
of its rightful shore in the P40,724,471.74 which the Province of Albay had
received from the NPC under the Memorandum of Agreement?
IV. Did the Office of the President commit grave abuse of discretion in
suspending in O.P. Cases Nos. 5469 and 5450 petitioner Salalima, who was
reelected on 11 May 1992, for an alleged administrative offense committed
during his first term; and in suspending in O.P. Case No. 5469 the other
petitioners, some of whom were elected and others reelected on 11 May
1992, for an alleged administrative offense committed in 1989?
V. Did the Office of the President commit grave abuse of discretion in holding
the petitioners in O.P. Case No. 5469 guilty of grave abuse of authority under
Section 60 (e) of the Local Government Code of 1991 although they were
charged under Section 3(g) of R.A. No. 3019, as amended, and Section 60(d)
of the Local Government? Code of 1991, thereby depriving them of due
process of law?
We shall take up these issues in the order they are presented.
I
Anent the first issue, the petitioners contend that the challenged administrative order
deprived them of their respective offices without procedural and substantive due process.
Their suspensions ranging from twelve months to twenty months or for the entire duration of
their unexpired term, which was then only seven months, constituted permanent
disenfranchisement or removal from office in clear violation of Section 60 of R.A. No. 7160
which mandates that an elective local official may be removed from office by order of the
court.
The Comment of the Solicitor General is silent on this issue. However, respondents Mayor
Corral and newly appointed provincial officials maintain that the suspension imposed upon
the petitioners in each of the four cases was within the limits provided for in Section 66(b) of
R.A. No. 7160 and that the Aggregate thereof ranging from twelve months to twenty
months, but not to exceed the unexpired portion of the petitioners term of office, did not
change its nature as to amount to removal.
Section 66(b, of R.A. No. 7160 expressly provides:
Sec. 66. Form and Notice of Decision. — . . .
(b) The penalty of suspension shall not exceed the unexpired term of the
respondent or a period of six (6) months for every administrative offense, nor
shall said penalty be a bar to the candidacy of the respondent so suspended
as long as he meet the qualifications for the office.
This provision sets the limits to the penalty of suspension , viz., it should not exceed
six months or the unexpired portion of the term of office of the respondent for every
administrative offense. An administrative offense means every act or conduct or
omission which amounts to, or constitutes, every of the grounds or disciplinary
action. The offenses for which suspension may be imposed are enumerated in
Section 60 of the Code, which reads:
Sec. 60. Grounds for Disciplinary Action. — An elective local official may be
disciplined, suspended, or removed from office on any of the following
grounds:
punishable by at Least prision mayor;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in
the case of members of the sangguniang panlalawigan, sangguniang
panlungsod, sangguniang bayan, and sangguniang barangay;
Josef Elvin Campos
g) Acquisition for, or acquisition of, foreign citizenship or residence or the
status ,e an immigrant of another country; and
enumerated above by order of the proper court
Assuming then that the findings and conclusions of the Office of the President in each of the
subject four administrative cases are correct, it committed no grave abuse of discretion in
imposing the penalty of suspension, although the aggregate thereof exceeded six months
and the unexpired portion of the petitioners' term of office. The fact remains that the
suspension imposed for each administrative offense did not exceed six months and there
was an express provision that the successive service of the suspension should not exceed
the unexpired portion of the term of office of the petitioners. Their term of office expired at
noon of 30 June 1995.2 And this Court is not prepared to rule that the suspension to the
petitioners' removal office.3
II
Petitioners contend that the decisions in O.P. Cases Nos. 5450, 5470, and 5471 are
predicated on SAO Report No. 93-11 of the COA Audit Team, while that in O.P. Case No.
5469 is based on the CSB issued by the Provincial Auditor of Albay. Since the Report and
the CSB are on appeal with, and pending resolution by, the Commission on Audit En Banc,
they are not yet final, conclusive, and executory as admitted by the team leader of the COA
Audit Team that submitted the SAO Report and by the Provincial Auditor who issued the
CSB. The petitioners also point out that the COA Chairman had already reversed the
recommendation in the SAO Report No. 93-11 that the Provincial Government of Albay
should share with the Municipality of Tiwi the P40,724,471.74 representing payments of the
NPC as of December 1992. They then submit that Administrative Order No. 153 suspending
all the petitioners is premature in view of the pendency of the appeal to the COA en
banc from SAO Report No. 93-11 and the CSB.
This issue of prematurity was raised before the Ad Hoc Committee. In rejecting it, the
Committee explained as follows:
It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised
by the respondents to COA merely involve questions of law, i.e., as to
whether the Province alone should be entitled to the payments made by NPC
under the MOA, and whether the shares of Tiwi and Daraga, the concerned
barangays, and the national government, should be held in trust for said
beneficiaries.
Considering that the factual findings under SAO Report 93-11 are not
disputed, this Committee has treated said factual findings as final or, as the
very least, as corroborative evidence.
Respondents' contention that COA's factual finding, as contained in SAO
Report No. 93-11 cannot be considered in this investigation is untenable. For
no administrative and criminal investigation can proceed, if a respondent is
allowed to argue that a particular COA finding is still the subject of an appeal
and move that the resolution of such administrative or criminal case be held it
abeyance. This will inevitably cause unnecessary delays in the investigation
of administrative and criminal cases since an appeal from a COA finding may
be brought all the way up to the Supreme Court.
Besides, the matters raised by the respondents on appeal involve only
conclusions/interpretation, of law. Surely, investigative bodies, such as COA,
the Ombudsman and even this Committee, are empowered to make their own
conclusions of law based on a given set of facts.
Finally, sufficient evidence has been adduced in this case apart from the
factual findings contained in SAO Report No. 93-11 to enable this Committee
to evaluate the merits of the instant complaint.
The alleged appeal from the CSB is unclear From the records, and in light of the foregoing
statement of the Ad Hoc Committee it is obvious that such appeal was not raised.
We agree with the Ad Hoc Committee that the pendency of the appeal was no obstacle to
the investigation and resolution of their administrative cases.
It may be further stressed that a special audit has a different purpose in line with the
constitutional power, authority, and duty of the COA under Section 2, Subdivision D, Article
IX of the Constitution "to examine, audit, and settle all accounts pertaining to the revenue
and receipts of, and expenditures or uses of funds and property, owned or held intrust by, or
pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities,
including government-owned or controlled corporations with original charters" and its
Josef Elvin Campos
"exclusive authority . . . to define the scope of its audit and examination, establish the
techniques and methods required therefor, and promulgate accounting aid auditing rules
and regulations, including those for the prevention and disallowance of irregular,
unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of
government funds and properties."4
III
As to the third issue, the petitioners aver that the P40,724,471.74 received by the Province
of Albay from the NPC represents part of the price paid for properties owned by the
province in a corporate capacity and repurchased by the former owner. It constitutes
payment of a debt and net of a tax, which debt "arose from. and was a consequence of the
Memorandum of agreement dated May 29, 1992." They further contend that the
Memorandum of Agreement (MOA) partakes of a deed of sale. And nowhere in the Real
Property Tax Code (P.D. No. 464)5 is there any provision requiring provinces to share with
the municipalities the proceeds of a private sale. What are required to be shared are only
the collections of real property taxes and Special Education Fund (SBF); proceeds of
delinquent taxes and penalties, or of the sale of delinquent real property, or of the
redemption thereof; and income realized from the use, lease, or disposition of real property
seized by the province.
It must be recalled that in August 1992, Governor Salalima and NPC President; Pablo
Malixi, were already agreed that the basic tax due from the NPC was P207,375,774.72. 6 But
later, Malixi informed the former that upon recomputation of the real property tax payable to
the Province of Albay at the minimum of one-fourth of one percent pursuant to Section 39(1)
of the Real Property Tax Code, the NPC came up with an adjusted figure of
P129,609,859.20.7 Governor Salalima then explained that one percent was applied in the
computation for the reconciled figure of P207,375,774.72 because the one-half percent
imposed by the respective ordinances of the municipalities where the delinquent properties
are located was added to the one-half percent imposed by the tax ordinance of the
Province. His reply reads as follows:
Septe
mber
9,
1992
Hon Pablo V. Malixi
President, National Power
Corporation
Diliman, Quezon City.
Dear President Malixi:
As suggested in your letter of August 31, 1992, we are very pleased to furnish
you herewith the certified true copies of the local tax ordinances which served
as our basis in imposing the rate of 1% of the reconciled figure of
P207,375,774.72, to wit:
(a) Resolution No. 30, series of 1974 of the Provincial Board of Albay,
enacting Provincial Tax Ordinance No. 4, whose Section I, provides:
"There shall be levied, assessed and collected as annual ad
valorem tax on real properties including improvements thereon
equivalent to one half of one percent, of the assessed value of
real property."
(b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi,
"That the tax rate of real property shall be one-half of one
percent of the assessed value of real property."
(c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga,
"Rates of Levy — The tax herein levied is hereby fixed at one-
half of one percent (1/2 of 1%) of the assessed value of the real
property.
These tax ordinances were in pursuance to Sec. 39 (1) (3) of PD 464, the
applicable law during the period 1984 to 1987. By adding the one half percent
imposed in the tax Ordinance of Tiwi to the one half percent also imposed in
the Provincial Tax Ordinance, we have a total of one percent which we used
as the rate of levy in computing the basic tax due on the real properties in
Tiwi.
Josef Elvin Campos
On the real properties in Daraga, we also added the one-half percent
imposed by the Daraga Tax Ordinance to the one-half percent of the
Provincial Tax Ordinance.
The additional tax of one percent for the Special Educational Fund (SEF) was
imposed pursuant to Section 41 of PD 464, which provides as follows:
"There is hereby imposed annual tax of one percent on real
property to accrue to the Special Educational Fund created
under Republic Act No. 5447, which shall be in addition to the
basic real property tax which local governments are authorized
to levy, assess and collect under this Code; . . . "
We hope that the foregoing clarification will settle whatever doubt there is on
why we applied 1% for basic tax and another 1% for SEF in arriving at
P207,375,774.72.8 (emphasis supplied).
The petitioners even emphasized in the instant petition that "Governor Salalima
specifically included the amounts due to the Municipalities of Tiwi and Daraga in
asking Napocor to settle its obligations." In other words, the original claim of
P214,845,184.76 or the reconciled figure of P207,375,774.72 representing real
property taxes from 11 June 1984 to 10 March 1987 already covered the real
property taxes payable to the municipalities concerned.
Hence, when the Province sold at public auction the delinquent properties consisting
of buildings, machines, and similar improvements, it was acting not only in its own
behalf but also in behalf of the municipalities concerned. And rightly so, because
under Section 60 of P.D. No. 477, the Province, thru the Provincial Treasurer, is duty
bound collect taxes throughout the province, including the national, provincial, and
municipal taxes and other revenues authorized by law. Moreover, under Section 73
of the Real Property Tax Code, the provincial or city treasurer is the one authorized
to advertise the sale at public auction of the entire delinquent real property, except
real property mentioned in Subsection (a) of Section 40, to satisfy all the taxes and
penalties due and costs of sale. He is also authorized to buy the delinquent real
property in the name of the province if there is no bidder or if the highest bid is for an
amount not sufficient to pay the taxes, penalties, and costs of sale. 9
Since in this case, there was no bidder, the provincial treasurer could buy, as he did,
the delinquent properties in the name of the province for the amount of taxes,
penalties due thereon, and the costs of sale, which included the amounts of taxes
due the municipalities concerned. It is therefore wrong for the petitioners to say that
the subject NPC properties are exclusively owned by the Province. The
Municipalities of Tiwi and Daraga may be considered co-owners thereof to the extent
of their respective shares in the real property taxes and the penalties thereon.
It must further be noted that it is the provincial treasurer who has charge of the
delinquent real property acquired by the province. 10 He is also the one whom the
delinquent taxpayer or any person holding a lien or claim to the property deal with in
case the latter wishes to redeem the property. 11 He is also the one authorized to
effect the resale at public auction of the delinquent property. 12 Thus, the
municipalities concerned had to depend on him for the effective collection of real
property taxes payable to them. Accordingly, when the Province entered into the
Memorandum of Agreement with the NPC, it was also acting in behalf of the
municipalities concerned. And whatever benefits that might spring from that
agreement should also be shared with the latter.
The MOA, contrary to the position of the petitioners, is not an ordinary contract of
sale. Hereinbelow is the pertinent portion of that agreement:
WHEREAS, the Supreme Court ruled in the NATIONAL POWER
CORPORATION VS. THE PROVINCE OF ALBAY, et al., G.R. No. 87479
that NAPOCOR is liable to pay Realty Tax for its properties in the
municipalities of Tiwi and Daraga, Albay for the period June 11, 1984 to
March 10, 1987;
WHEREAS, NAPOCOR is willing to settle its realty tax liability in favor of the
PROVINCE OF ALBAY;
WHEREAS, there is a need to further validate/reconcile the computation of
the realty tax in the total amount of P214,845,184.76;
NOW, THEREFORE, in view of the foregoing premises and for and in
consideration of the mutual covenant and stipulations hereinafter provided,
the parties hereto have agreed as follows:
Josef Elvin Campos
1. NAPOCOR will make an initial payment of P17,783,000.00
receipt of which is hereby/acknowledged.
2. The balance of the validated/reconciled amount of the real
estate taxes will be paid in 24 equal monthly installments,
payable within the first five (5) working days of the month. The
first monthly installment will commence in September 1992.
3. Should NAPOCOR default in any monthly installment, the
balance will immediately become due and demandable.
4. NAPOCOR will pay such other taxes and charges, such as
the franchise tax as provided for in the Local Government Code
of 1991.
5. In consideration of settlement of NAPOCOR's tax Liability,
the PROVINCE OF ALBAY hereby waives its claim of
ownership over NAPOCOR' properties subject in G.R. No.
87479 upon full payment of the balance due to the PROVINCE
OF ALBAY. 13 (emphasis supplied).
The tenor of the abovequoted agreement shows that the intention of the parties was
for the redemption of the subject properties in that the Province would waive
ownership over the properties "in consideration of settlement of Napocor's tax
liability.
Under Section 78 of the Real Property Tax Code, the delinquent real property sold at
public auction may be redeemed by paying the total amount of taxes and penalties
due up to the date of redemption, costs of sale, and the interest at 20% of the
purchase price.
The petitioners are estopped from claiming that the amounts received by the
Province from the NPC constitute payments of a debt under the MOA or of contract
price in a private sale. They constitute redemption price or payments of NPC's tax
liabilities. This is evident from the MOA as well as the entry in the receipt issued by
the Province, thru the Provincial Treasurer, which reads:
Date: July 29, 1992
Received from National Power Corp.
Manila.
In the amount of Seventeen Million Seven Hundred Sixty-Three Thousand
Pesos Philippine Currency P17,763,030.00
In payment of the following:
For Partial Payment = P17,763,000.00
of Realty Tax Delinquency of Case No. 87479, NPC vs. Province of Albay.
Total P17,763,000.00.
(Sgd.)
Abundi
o M.
Nuñez
Provin
cial
Treasu
rer. 14
Also worth noting is Provincial Ordinance No. 09-92 adopted by the petitioners which
provides: "That the installments paid by said corporation for the months of
September to December 1992, representing partial payments of the principal tax
due are declared forfeited in favor of the Provincial Government of Albay."
Moreover, in Resolution No. 197-92, the petitioners referred as "tax benefits" the
shares of certain municipalities and barangays from the amount paid by the NPC
under the MOA. The resolution reads in part as follows:
WHEREAS, by virtue of the Memorandum agreement, signed by the
petitioner, Province of Albay and respondent-oppositor, National Power
Corporation (NPC), the latter have agreed and paid an initial payment to the
Province of Albay;
WHEREAS, the sharing based on the Local Government Code of 1991, the
municipalities of Malinao and Ligao are entitled to their shares of P1,435.00
and P4,416.82 respectively and the barangays Bay in Lingao to P319.00 and
Tagoytoy in Malinao to P981.00,
Josef Elvin Campos
WHEREAS, these tax benefits due them are not enough to pursue a
worthwhile project in said municipalities and barangays considering the
present economic situation. 15 (emphasis supplied).
As pointed out by the respondents, if the MOA was merely for the repurchase by
NPC of its properties from Albay, what could have been executed was a simple deed
of absolute sale in favor of NPC at an agreed price not necessarily P214 million
which was the total amount of the realty tax in arrears. Additionally, there would have
been no need for the parties "to further validate/reconcile the tax computation of the
realty tax in the total amount of P214,845,184,76."
Clearly, the P40,724,471.74 paid by the NPC to the Province pursuant to the MOA
was part of the redemption price or of the realty taxes in arrears.
It is conceded that under Section 78 of the Real Property Tax Code, redemption of
delinquency property must be made within one year from the date of registration of
sale of the property. The auction sale of the NPC properties was held on 30 March
1989 and declared valid by this Court in its 4 June 1990 decision. It was only on 29
July 1992 that the NPC offered to repurchase its former properties by paying its tax
liabilities. When the Province accepted the offer, it virtually waived the one-year
redemption period. And having thus allowed the MPC to redeem the subject
properties and having received part of the redemption price, the Province should
have shared with the municipalities concerned those amounts paid by the NPC in the
same manner and proportion as if the taxes had been paid in, regular course
conformably with Section 87(c) of the Real Property Tax Code, which provides:
(c) the proceeds of all delinquent taxes and penalties, as well as the income
realized from the use, lease or other disposition of real property acquired by
the province or city at a public auction in accordance with the provisions of
this Code, and the proceeds of the sale of the delinquent real property or of
the redemption thereof shall accrue to the province, city or municipality in the
same proportion as if the tax or taxes had been paid in regular course.
As early as 3 August 1992, respondent Mayor Corral had already made a written
demand for payment or remittance of the shares accruing to the Municipality of Tiwi.
Petitioner Governor Salalima refused saying that the initial check of P17,763,000.00
was merely an "earnest money." Yet, on 22 October 1992, the petitioners passed the
aforequoted Resolution No. 197-92 giving some local government units, where
smaller portions of the delinquent properties are situated, shares from the payments
made by the NPC under the MOA..
The petitioners cannot claim to have acted in good faith in refusing to give the
municipalities of Tiwi and Daraga their share. As pointed out by the Office of the
Solicitor General, the petitioners were aware of the local tax ordinances passed by
the respective Sangguniang Bayan of Tiwi and Daraga relative to the realty tax to be
imposed on properties located in their respective localities. Petitioner Salalima had
even quoted the said ordinances in his letter to Mr. Pablo Malixi and attached copies
thereof to that letter. Significantly, the petitioners averred in the instant petition that
"Governor Salalima specifically included the amounts due to the municipalities of
Tiwi and Daraga in asking NPC to settle its obligations."
When doubt arose as to whether the municipalities concerned are entitled to share in
the amounts paid by the NPC, the province filed on 20 November 1992 a petition for
declaratory relief, which the Regional Trial Court of Albay decided only on 12 May
1994. Yet, as of 31 December 1992, the province had already disbursed or spent a
large part of the NPC payments. As found by COA, "of the P40,724,471.74 actually
paid by the NPC and lodged in the province's general fund, P35,803,118.300 was
disbursed or spent by the Province."
If petitioners were really in good faith, they should have held the shares of Tiwi and
Daraga in trust 16 pursuant to Section 309 (b) of the Local Government Code of
1991, which provides:
Trust funds shall consist of private and public monies which have officially
come into the possession of the local government or of a local government
official as trustee, agent or administrator . . . A trust fund shall only be used
for the specific purpose for which it came into the possession of the local
government unit.
As pointed out by the Ad Hoc Committee in its report, which was adopted by the
Office of the President:
It is unmistakable from the foregoing provisions that the shares of Tiwi,
Daraga, the concerned barangays and the national government in the
Josef Elvin Campos
payments made by NPC under the MOA, should be, as they are in fact, trust
funds. As such, the Province should have, upon receipt of said payments,
segregated and lodged in special accounts, the respective shares of Tiwi,
Daraga, the concerned barangays and the national government for eventual
remittance to said beneficiaries. Said shares cannot be lodged in, nor remain
part of, the Province's general fund. Moreover, the Province cannot utilize
said amounts for its own benefit or account (see also Sec. 86, PD No. 464, as
amended).
Therefore, the balance of P26,979,962.52 representing the collective shares
of Tiwi and Daraga, the concerned barangays and the national government,
cannot be appropriated nor disbursed by the Province for the payment of its
own expenditures or contractual obligations.
However, in total disregard of the law, the Province treated the
P40,724,471.74 NPC payments as "surplus adjustment" (Account 7-92-419)
and lodged the same in its general fund. No trust liability accounts were
created in favor of the rightful beneficiaries thereof as required by law.
We cannot therefore fault the public respondents with grave abuse of discretion in
holding the petitioners guilty of abuse of authority for failure to share with the
municipalities of Tiwi and Daraga the amount of P40,724,471.74 paid by the NPC.
IV
We agree with the petitioners that Governor Salalima could no longer be held
administratively liable in C.P. Case No. 5450 in connection with the negotiated
contract entered into on 6 March 1992 with RYU Construction for additional
rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held
administratively liable in O.P. Case No. 5469 for the execution in November 1989 of
the retainer contract with Atty. Jesus Cornago and the Corte's and Reyna Law Firm.
This is so because public officials cannot be subject to disciplinary action for
administrative misconduct committed during a prior term, as held in Pascual
vs. Provincial Board of Nueva Ecija 17 and Aguinaldo vs. Santos. 18 In Pascual, this
Court ruled:
We now come to one main issue of the controversy — the legality of
disciplining an elective municipal official for a wrongful act committed by him
during his immediately preceding term of office.
In the absence of any precedent in this jurisdiction, we have resorted to
American authorities. We found that cases on the matter are conflicting due in
part, probably, to differences in statutes and constitutional provisions, and
also, in part, to a divergence of views with respect to the question of whether
the subsequent election or appointment condones the prior misconduct. The
weight of authority, however, seems to incline to the rule denying the right to
remove one from office because of misconduct during a prior term, to which
we fully subscribe.
Offenses committed, or acts done, during previous term are
generally held not to furnish cause for removal and this is
especially true where the constitution provides that the penalty
in proceedings for removal shall not extend beyond the removal
from office, and disqualification from holding office for the term
for which the office was elected or appointed. (67 C.J.S. p.
248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs.
Nowell, 40 S W. 2d 418; People ex rel. Bagshaw vs.
Thompson, 130 P. 2d 237; Board of Com'rs of Kingfisher
County vs. Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In
re Fudula, 147 A. 67; State vs. Ward, 43 S.V. 2d. 217).
The underlying theory is that each term is separate from other terms, and that
the reelection to office operates as a condonation of the officer's previous
misconduct to the extent of cutting off the right to remove him therefor (43
Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50
L.R.A.. (NS) 553. As held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited
in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 —
The Court should never remove a public officer for acts done
prior to his present term of office. To do otherwise would be to
deprive the people of their right to elect their officers. When the
people have elected a man to office, it must be assumed that
they did this with knowledge of his life and character, and that
Josef Elvin Campos
they disregarded or forgave his faults or misconduct, if he had
been guilty of any. It is not for the court, by reason of such
faults or misconduct to practically overrule the will of the
people.
This Court reiterated this rule in Aguinaldo and explicitly stated therein:
Clearly then, the rule is that a public official can not be removed for
administrative misconduct committed during a prior term, since his re-election
to office operates a condonation of the officer's previous misconduct to the
extent of cutting off the right to remove him therefor. The foregoing rule,
however, finds no application to criminal cases pending against petitioners for
acts he may have committed during the failed coup.
However, the Office of the Solicitor General maintains that Aguinaldo does not apply
because the case against the official therein was already pending when he filed his
certificate of candidacy for his reelection bid. It is of the view that an official's
reelection renders moot and academic an administrative complaint against him for
acts done during his previous term only if the complaint was filed before his
reelection. The fine distinction does not impress us. The rule makes no distinction.
As a matter of fact, in Pascual the administrative complaint against Pascual for acts
committed during his first term as Mayor of San Jose, Nueva Ecija, was filed only a
year after he was reelected.
The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are
concerned, is still a good law. Such a rule is not only founded on the theory that an
official's reelection expresses the sovereign will of the electorate to forgive or
condone any act or omission constituting a ground for administrative discipline which
was committed during his previous term. We may add that sound public policy
dictates it. To rule otherwise would open the floodgates to exacerbating endless
partisan contests between the reelected official and his political enemies, who may
not stop to hound the former during his new term with administrative cases for acts
alleged to have been committed during his previous term. His second term may thus
be devoted to defending himself in the said cases to the detriment of public service.
This doctrine of forgiveness or condonation cannot, however, apply to criminal acts
which the reelected official may have committed during his previous term.
We thus rule that any administrative liability which petitioner Salalima might have
incurred in the execution of the retainer contract in O.P. Case No. 5469 and the
incidents related therewith and in the execution on 6 March 1992 of a contract for
additional repair and rehabilitation works for the Tabaco Public Market in O.P. Case
No. 5450 are deemed extinguished by his reelection in the 11 May 1992
synchronized elections. So are the liabilities, if any, of petitioner members of the
Sangguniang Panlalawigan ng Albay, who signed Resolution No. 129 authorizing
petitioner Salalima to enter into the retainer contract in question and who were
reelected in the 1992 elections. This is, however, without prejudice to the institution
of appropriate civil and criminal cases as may be warranted by the attendant
circumstances. As to petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo
who became members of the Sangguniang Panlalawigan only after their election in
1992, they could not beheld administratively liable in O.P. case No. 5469, for they
had nothing to do with the said resolution which was adopted in April 1989 yet.
Having thus held that the petitioners could no longer be administratively liable in O.P.
Case No. 5469, we find it unnecessary to delve into, and pass upon, the fifth issue.
WHEREFORE, the instant special action for certiorari is hereby partly GRANTED.
That part of the challenged Administrative Order No. 153 imposing the penalty of
suspension on petitioner Governor Romeo Salalima in O.P. Cases Nos. 5450 and
5469 and on petitioners Vice Governor Danilo Azaña and Sangguniang
Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Wilbor Rontas,
Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and
Nemesio Baclao in O.P. Case No. 5469 are hereby ANNULLED and SET ASIDE,
without prejudice to the filing of appropriate civil or criminal actions against them if
warranted by the attendant circumstances.
SO ORDERED.
Narvasa, C.J., Padilla, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.
Regalado, J., took no part.
Josef Elvin Campos
Berces v. Executive Secretary (241 SCRA 539)
G.R. No. 112099 February 21, 1995
ACHILLES C. BERCES, SR., petitioner,
vs.
HON. EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR., CHIEF PRESIDENTIAL
LEGAL COUNSEL ANTONIO CARPIO and MAYOR NAOMI C. CORRAL OF TIWI,
ALBAY, respondents.
QUIASON, J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court
with prayer for mandatory preliminary injunction, assailing the Orders of the Office of the
President as having been issued with grave abuses of discretion. Said Orders directed the
stay of execution of the decision of the Sangguniang Panlalawigan suspending the Mayor of
Tiwi, Albay from office.
I
Petitioner filed two administrative cases against respondent Naomi C. Corral, the incumbent
Mayor of Tiwi, Albay with the Sangguniang Panlalawigan of Albay, to wit:
(1) Administrative Case No. 02-92 for abuse of authority and/or oppression
for non-payment of accrued leave benefits due the petitioner amounting to
P36,779.02.
(2) Administrative Case No. 05-92 for dishonesty and abuse of authority for
installing a water pipeline which is being operated, maintained and paid for by
the municipality to service respondent's private residence and medical clinic.
On July 1, 1993, the Sangguniang Panlalawigan disposed the two Administrative cases in
the following manner:
(1) Administrative Case No. 02-92
ACCORDINGLY, respondent Mayor Naomi C. Corral of Tiwi, Albay, is hereby
ordered to pay Achilles Costo Berces, Sr. the sum of THIRTY-SIX
THOUSAND AND SEVEN HUNDRED SEVENTY-NINE PESOS and TWO
CENTAVOS (P36,779.02) per Voucher No. 352, plus legal interest due
thereon from the time it was approved in audit up to final payment, it being
legally due the Complainant representing the money value of his leave credits
accruing for services rendered in the municipality from 1988 to 1992 as a duly
elected Municipal Councilor. IN ADDITION, respondent Mayor NAOMI C.
CORRAL is hereby ordered SUSPENDED from office as Municipal Mayor of
Tiwi, Albay, for a period of two (2) months, effective upon receipt hereof for
her blatant abuse of authority coupled with oppression as a public example to
deter others similarly inclined from using public office as a tool for personal
vengeance, vindictiveness and oppression at the expense of the Taxpayer
(Rollo, p. 14).
(2) Administrative Case No. 05-92
WHEREFORE, premises considered, respondent Mayor NAOMI C. CORRAL
of Tiwi, Albay, is hereby sentenced to suffer the penalty of SUSPENSION
from office as Municipal Mayor thereof for a period of THREE (3) MONTHS
beginning after her service of the first penalty of suspension ordered in
Administrative Case No. 02-92. She is likewise ordered to reimburse the
Municipality of Tiwi One-half of the amount the latter have paid for electric
and water bills from July to December 1992, inclusive (Rollo, p. 16).
Consequently, respondent Mayor appealed to the Office of the President questioning the
decision and at the same time prayed for the stay of execution thereof in accordance with
Section 67(b) of the Local Government Code, which provides:
Administrative Appeals. — Decision in administrative cases may, within thirty
(30) days from receipt thereof, be appealed to the following:
x x x x x x x x x
(b) The Office of the President, in the case of decisions of the
sangguniang panlalawigan and the sangguniang panglungsod
of highly urbanized cities and independent component cities.
Acting on the prayer to stay execution during the pendency of the appeal, the Office of the
President issued an Order on July 28, 1993, the pertinent portions of which read as follows:
xxx xxx xxx
Josef Elvin Campos
The stay of the execution is governed by Section 68 of R.A. No. 7160 and
Section 6 of Administrative Order No. 18 dated 12 February 1987, quoted
below:
Sec. 68. Execution Pending Appeal. — An appeal shall not prevent a decision
from becoming final or executory. The respondent shall be considered as
having been placed under preventive suspension during the pendency of an
appeal in the events he wins such appeal. In the event the appeal results in
an exoneration, he shall be paid his salary and such other emoluments during
the pendency of the appeal (R.A. No. 7160).
Sec. 6 Except as otherwise provided by special laws, the execution of the
decision/resolution/order appealed from is stayed upon filing of the appeal
within the period prescribed herein. However, in all cases, at any time during
the pendency of the appeal, the Office of the President may direct or stay the
execution of the decision/resolution/order appealed from upon such terms
and conditions as it may deem just and reasonable (Adm. Order No. 18).
xxx xxx xxx
After due consideration, and in the light of the Petition for Review filed before
this Office, we find that a stay of execution pending appeal would be just and
reasonable to prevent undue prejudice to public interest.
WHEREFORE, premises considered, this Office hereby orders the
suspension/stay of execution of:
a) the Decision of the Sangguniang Panlalawigan of Albay in
Administrative Case No. 02-92 dated 1 July 1993 suspending
Mayor Naomi C. Corral from office for a period of two (2)
months, and
b) the Resolution of the Sangguniang Panlalawigan of Albay in
Administrative Case. No. 05-92 dated 5 July 1993 suspending
Mayor Naomi C. Corral from office for a period of three (3)
months (Rollo, pp. 55-56).
Petitioner then filed a Motion for Reconsideration questioning the aforesaid Order of the
Office of the President.
On September 13, 1990, the Motion for Reconsideration was denied.
II
Petitioner claims that the governing law in the instant case is R.A. No. 7160, which contains
a mandatory provision that an appeal "shall not prevent a decision from becoming final and
executory." He argues that administrative Order No. 18 dated February 12, 1987, (entitle
"Prescribing the Rules and Regulations Governing Appeals to Office the President")
authorizing the President to stay the execution of the appealed decision at any time during
the pendency of the appeal, was repealed by R.A. No. 7160, which took effect on January
1, 1991 (Rollo, pp. 5-6).
The petition is devoid of merit.
Petitioner invokes the repealing clause of Section 530 (f), R.A. No. 7160, which provides:
All general and special laws, acts, city charters, decrees, executive orders,
administrative regulations, part or parts thereof, which are incosistent with
any of the provisions of this Code, are hereby repealed or modified
accordingly.
The aforementioned clause is not an express repeal of Section 6 of Administrative Order
No. 18 because it failed to identify or designate the laws or executive orders that are
intended to be repealed (cf. I Sutherland, Statutory Construction 467 [1943]).
If there is any repeal of Administrative Order No. 18 by R.A. No. 7160, it is through
implication though such kind of repeal is not favored (The Philippine American Management
Co., Inc. v. The Philippine American Management Employees Association, 49 SCRA 194
[1973]). There is even a presumption against implied repeal.
An implied repeal predicates the intended repeal upon the condition that a substantial
conflict must be found between the new and prior laws. In the absence of an express
repeal, a subsequent law cannot be construed as repealing a prior law unless an
irreconcible inconsistency and repugnancy exists in the terms of the new and old laws (Iloilo
Palay and Corn Planters Association, Inc. v. Feliciano, 13 SCRA 377 [1965]). The two laws
must be absolutely incompatible (Compania General de Tabacos v. Collector of Customs,
46 Phil. 8 [1924]). There must be such a repugnancy between the laws that they cannot be
made to stand together (Crawford, Construction of Statutes 631 [1940]).
Josef Elvin Campos
We find that the provisions of Section 68 of R.A. No. 7160 and Section 6 of Administrative
Order No. 18 are not irreconcillably inconsistent and repugnant and the two laws must in
fact be read together.
The first sentence of Section 68 merely provides that an "appeal shall not prevent a
decision from becoming final or executory." As worded, there is room to construe said
provision as giving discretion to the reviewing officials to stay the execution of the appealed
decision. There is nothing to infer therefrom that the reviewing officials are deprived of the
authority to order a stay of the appealed order. If the intention of Congress was to repeal
Section 6 of Administrative Order No. 18, it could have used more direct language
expressive of such intention.
The execution of decisions pending appeal is procedural and in the absence of a clear
legislative intent to remove from the reviewing officials the authority to order a stay of
execution, such authority can provided in the rules and regulations governing the appeals of
elective officials in administrative cases.
The term "shall" may be read either as mandatory or directory depending upon a
consideration of the entire provisions in which it is found, its object and the consequences
that would follow from construing it one way or the other (cf. De Mesa v. Mencias, 18 SCRA
533 [1966]). In the case at bench, there is no basis to justify the construction of the word as
mandatory.
The Office of the President made a finding that the execution of the decision of the
Sagguniang Panlalawigan suspending respondent Mayor from office might be prejudicial to
the public interest. Thus, in order not to disrupt the rendition of service by the mayor to the
public, a stay of the execution of the decision is in order.
SO ORDERED.
Malinao v. Reyes (256 SCRA 616)

G.R. No. 117618 March 29, 1996
VIRGINIA MALINAO, petitioner,
vs.
HON. LUISITO REYES, in his capacity as Governor of the Province of Marinduque,
SANGGUNIANG PANLALAWIGAN OF MARINDUQUE and WILFREDO RED, in his
capacity as Mayor of Sta. Cruz, Marinduque, respondents.

MENDOZA, J.:p
This is a petition for certiorari and mandamus to annul the decision dated October 21, 1994
of the Sangguniang Panlalawigan of Marinduque, dismissing the administrative case filed
by petitioner against respondent Mayor Wilfredo Red of Sta. Cruz, Marinduque. The ground
for the present petition is that the same body already found respondent Mayor guilty of
abuse of authority in removing petitioner from her post as Human Resource Manager
without due process in another decision which is now final and executory.
Petitioner Virginia Malinao is Human Resource Manager III of Sta. Cruz, Marinduque.
Respondent Mayor filed a case against her in the Office of the Ombudsman for gross
neglect of duty, inefficiency and incompetence. While the case was pending, he appointed a
replacement for petitioner.
On February 24, 1994 petitioner filed an administrative case, docketed as Administrative
Case No, 93-03, against respondent Mayor in the Sangguniang Panlalawigan of
Marinduque, charging him with abuse of authority and denial of due process.
On August 12, 1994, the case was taken up in executive session of the Sanggunian. The
transcript of stenographic notes of the session 1 shows that the Sanggunian, by the vote of 5
to 3 of its members, found respondent Mayor guilty of the charge and imposed on him the
penalty of one-month suspension.
The result of the voting was subsequently embodied in a "Decision" dated September 5,
1994,2 signed by only one member of the Sanggunian, Rodrigo V. Sotto, who did so as
"Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan." Copies of the
"Decision" were served on respondent Mayor Red as well as on respondent Governor
Luisito Reyes On September 12, 1994.
On September 14, 1994, respondent Mayor filed a manifestation 3 before the Sanggunian,
questioning the "Decision" on the ground that it was signed by Sotto alone, "apparently
acting in his capacity and designated as "Presiding Chairman, Blue Ribbon Committee,
Sangguniang Panlalawigan." He contended that because of this the decision could only be
Josef Elvin Campos
considered as a recommendation of the Blue Ribbon Committee and he was not bound
thereby.
On September 13, 1994, respondent Mayor sought the opinion of the Secretary of the
Department of the Interior and Local Government regarding the validity of the "Decision."
In his letter dated September 14, 1994, 4 DILG Secretary Rafael M. Alunan III opined that
the " 'decision' alluded to does not appear to be in accordance with Section 66 of the Local
Government Code of 1991 and settled jurisprudence" since
in the instant case, the purported decision of the Blue Ribbon Committee
should have been submitted to, approved and/or adopted by the
Sangguniang Panlalawigan as a collegial body inasmuch as the Sangguniang
Panlalawigan has the administrative jurisdiction to take cognizance thereof in
conformity with Section 61 and Section 66 of the Code. It is not for the said
committee to decide on the merits thereof, more so to impose the
suspension, as its duty and function is purely recommendatory. If it were at all
the intention of the Sangguniang Panlalawigan to adopt entirely the
recommendation of the Blue Ribbon Committee, it should have so stated and
the members of the Sangguniang Panlalawigan, who may have affirmatively
voted thereon or participated in its deliberations, should have affixed their
respective signatures on whatever decision that could have been arrived
at. . . .
On the other hand petitioner sent a letter 5 on October 14, 1994 to respondent Governor
Reyes, demanding that the "Decision" suspending respondent Mayor from office be
implemented without further delay.
In his letter dated October 20, 1994, 6 respondent Governor informed the Sanggunian that
he agreed with the opinion of the DILG for which reason he could not implement the
"Decision" in question.
On October 21, 1994,7 the Sanggunian, voting 7 to 2, acquitted respondent Mayor of the
charges against him. The vote was embodied in a Decision of the same date, which was
signed by all members who had thus voted.8
Hence this petition.
I. Petitioner's basic contention is that inasmuch as the "Decision" of September 5, 1994 had
become final and executory, for failure of respondent Mayor to appeal, it was beyond the
power of the Sanggunian to render another decision on October 21, 1994 which in effect
reversed the first decision.
These contentions are without merit. What petitioner claims to be the September 5, 1994
"Decision" of the Sangguniang Panlalawigan bore the signature of only one member
(Rodrigo V. Sotto) who signed the "Decision" as "Presiding Chairman, Blue Ribbon
Committee, Sangguniang Panlalawigan." Petitioner claims that at its session on August 12,
1994, the Sanggunian by the vote of five members against three found respondent Mayor
guilty of having removed petitioner as Human Resources Officer III without due process and
that this fact is shown in the minutes of the session of the Sanggunian. The minutes
referred to read in pertinent part as follows:
KGD. SOTTO –– No if he [respondent Mayor] is acquitted, then let's acquit it.
Whatever is the decision everybody goes to the majority.
(There was nominal voting from the Sangguniang Panlalawigan member. For
NOT GUILTY OR GUILTY)
KGD. ZOLETA –– I vote not guilty.
KGD. MUHI –– Guilty.
KGD. LIM –– Not guilty.
KGD. RAZA –– First I would like to say that I will decide on the merit of the
case. The fact that the Civil Service ordered the reinstatement wherein
Virginia Malinao is included, only means that the Supreme Court duly
constituted has found the merit of the decision of the Civil Service.
I vote that the Mayor is guilty.
KGD. PINAROC –– Guilty.
KGD. DE LUNA –– Guilty, there is no due process and to protect the integrity
of the Sangguniang Panlalawigan.
KGD. LAGRAN –– Guilty.
KGD. ZOLETA –– My reason for voting "not guilty" is that the mayor acted in
good faith, he just followed the order of the reorganization recommended by
the Placement Committee.
KGD. REJANO –– The order of the reorganization was given by the Civil
Service Commission and based on the contention made by Kgd. Palamos
Josef Elvin Campos
that since there should be reorganization to be conducted by the Civil Service
Commission the mayor was supposed to go on with that reorganization and
based on the reorganization there should be a screening committee to check
whether the employees are really working efficiently. Based on the case that
has been given to Mrs. Malinao, based on the witnesses, Ligeralde,
Monterozo and Pastrana and then decided that Mayor Red has done in good
faith.
So I vote Not Guilty.
Five (5) voted GUILTY:
Kgd. Muhi
Kgd. Raza
Kgd. Pinaroc
Kgd. Lagran
Kgd. De Luna
Three (3) voted NOT GUILTY:
Kgd. Rejano
Kgd. Zoleta
Kgd. Lim
KGD. SOTTO –– Punishment . . .
Censure? Reprimand? Suspension?.
KGD. LAGRAN –– I suggest that only those who voted "guilty" should vote as
to what punishment should be given.
KGD. LIM –– All the members should be given the right to vote.
(THE VOTING PROCEEDED.)
Kgd. Muhi –– Suspension
Kgd. Raza –– Suspension
Kgd. Pinaroc –– Suspension
Kgd. Lagran –– Suspension
Kgd. de Luna –– Suspension
KGD. ZOLETA –– Since we voted "not guilty" therefore "no punishment."
KGD. REJANO –– "No punishment"
KGD. LIM –– "No punishment"
KGD. SOTTO –– How many months?
KGD. MUHI –– One month.
KGD. RAZA –– One month.
KGD. PINAROC –– One month.
KGD. LAGRAN –– One month.
KGD. DE LUNA –– One month.
KGD SOTTO –– Be it on record that on August 12, 1994 during the Executive
Session of the Sangguniang Panlalawigan en banc the respondent is hereby
found "guilty."
Effective upon receipt of the Decision, copy furnished: the counsel for
Respondent, the Counsel for Complainant, the Municipal Treasurer, Sta.
Cruz, Marinduque, the Provincial Auditor, the Civil Service Commission,
Boac, Marinduque, the DILG, Boac, Marinduque, the Provincial Governor.
Contrary to petitioner's claim, what the minutes only show is that on August 12, 1994 the
Sanggunian took a vote on the administrative case of respondent Mayor and not that it then
rendered a decision as required by §66 (a) of the Local Government Code (R.A. No. 7160)
which provides as follows:
§66. Form and Notice of Decision. –– (a) The investigation of the case shall
be terminated within ninety (90) days from the start thereof. Within thirty (30)
days after the end of the investigation, the Office of the President or the
sanggunian concerned shall render a decision in writing stating clearly and
distinctly the facts and the reasons for such decision. Copies of said decision
shall immediately be furnished the respondent and all interested parties.
In order to render a decision in administrative cases involving elective local officials,
the decision of the Sanggunian must thus be "in writing stating clearly and distinctly
the facts and the reasons for such decision." What the Sanggunian, therefore, did on
August 12, 1994 was not to render a decision.
Neither may the so-called "Decision" prepared by Sanggunian Member Rodrigo V. Sotto on
September 5, 1994 be regarded as the decision of the Sanggunian for lack of the signatures
of the requisite majority. Like the procedure in the Supreme Court, the voting following the
deliberation of the members of the Sanggunian did not necessarily constitute their decision
Josef Elvin Campos
unless this was embodied in an opinion prepared by one of them and concurred in by the
others, in the same way that the voting following the deliberation on a case in the Supreme
Court becomes its decision only after the opinion prepared by a Justice is concurred in by
others composing the majority. Until they have signed the opinion and the decision is
promulgated, the Justices are free to change their votes. 9
Indeed, in his comment 10 in this case, Member Sotto admits that the draft decision he
prepared had only his signature "due to the reluctance of some Kagawads to affix their
signatures." Consequently the draft never became a decision. It is noteworthy that the draft
was signed by Member Sotto in his capacity as "Presiding Chairman of the Blue Ribbon
Committee of the Sangguniang Panlalawigan" and that it did not provide spaces for the
signatures of other members of the Sanggunian had it been intended that it be signed by
them. This fact led the DILG to conclude that the draft was simply the report and
recommendation of the Blue Ribbon Committee to the Sanggunian.
Now, as already stated, the Sanggunian, at its session on October 21, 1994, took another
vote and, 7 to 2, decided to dismiss the case against respondent Mayor. This time its
decision was made in writing, stating the facts and the law on which it was based, and it
was signed by the members taking part in the decision. This, and not the so-called decision
of September 5, 1994, is the decision of the Sanggunian.
Petitioner complains that no notice of the session by the Sanggunian on October 21, 1994
was given to her. None was really required to be given to her. The deliberation of the
Sanggunian was an internal matter.
II. Petitioner brought this case by way of petition for certiorari and mandamus. A prime
specification of the writ of certiorari, however, is that there is no appeal nor any plain,
speedy and adequate remedy in the ordinary course of law available to petitioner. But, in
the case at bar, petitioner could have appealed the decision of the Sanggunian to the Office
of the President as provided in §67(b) of the Local Government Code.
III. At all events, this case is now moot and academic as a result of the expiration of
respondent's term during which the act complained of was allegedly committed, and further
proceedings against respondent Mayor are barred by his reelection on May 8, 1995.
Pursuant to §66(b) of the Code, the penalty of suspension cannot exceed the unexpired
term of the respondent or a period of six (6) months for every administrative offense. On the
other hand, any administrative disciplinary proceeding against respondent is abated if in the
meantime he is reelected, because his reelection results in a condonation of whatever
misconduct he might have committed during his previous term. 11
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Francisco, Hermosisima, Jr., and Panganiban, JJ., concur.
Torres, Jr., J., is on leave.
Sanggunian Baranggay of Don Mariano Marcos v. Martinez (G.R. No.

170626, March 3, 2008)
[G.R. NO. 170626 : March 3, 2008]
THE SANGGUNIANG BARANGAY OF BARANGAY DON MARIANO MARCOS,
MUNICIPALITY OF BAYOMBONG PROVINCE OF NUEVA VISCAYA represented by
BARANGAY KAGAWAD JOSE CENEN SANTOS, MARIO BACUD, WALTER
FRANCISCO, ROSITA SEBASTIAN, LAURETA CABAUATAN, CECILIA ALINDAYU and
MELY SIMANGAN, Petitioners, v. PUNONG BARANGAY SEVERINO
MARTINEZ, Respondent.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
Orders dated 20 October 2005 1 and 30 November 20052 of the Regional Trial Court (trial
court), Branch 27, of Bayombong, Nueva Vizcaya, in Special Civil Action No. 6727. In its
assailed Orders, the trial court ruled that the Sangguniang Bayan of Bayombong, Neuva
Vizcaya (Sangguniang Bayan), exceeded its jurisdiction when it imposed upon respondent
Severino Martinez the administrative penalty of removal from office.
Petitioner Sangguniang Barangay is the legislative body of Barangay Don Mariano Marcos,
Bayombong, Nueva Vizcaya, a local government unit created, organized and existing as
such under pertinent laws of the Republic of the Philippines. Respondent Martinez is the
incumbent Punong Barangay of the said local government unit. 3
Josef Elvin Campos
On 5 November 2004, Martinez was administratively charged with Dishonesty and Graft
and Corruption by petitioner through the filing of a verified complaint before the
Sangguniang Bayan as the disciplining authority over elective barangay officials pursuant to
Section 614 of Rep. Act No. 7160, otherwise known as the Local Government Code.
Petitioner filed with the Sangguniang Bayan an Amended Administrative Complaint against
Martinez on 6 December 2004 for Dishonesty, Misconduct in Office and Violation of the
Anti-Graft and Corrupt Practices Act. 5 Petitioner alleged that Martinez committed the
following acts:
1. Failure to submit and fully remit to the Barangay Treasurer the income of their solid waste
management project since 2001 particularly the sale of fertilizer derived from composting.
2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials taken
from garbage collection.
3. Using the garbage truck for other purposes like hauling sand and gravel for private
persons without monetary benefit to the barangay because no income from this source
appears in the year end report even if payments were collected x x x.
4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other spare
parts of the garbage truck instead of using the money or income of said truck from the
garbage fees collected as income from its Sold Waste Management Project. x x x.
5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because although a
cash advance was made by the respondent for the said purpose, he, however, did not
attend said seminar because on the dates when he was supposed to be on seminar they
saw him in the barangay. x x x.
6. That several attempts to discuss said problem during sessions were all in vain because
respondent declined to discuss it and would adjourn the session.x x x. 6
Upon his failure to file an Answer to the Amended Administrative Complaint dated 6
December 2004, Martinez was declared by the Sangguniang Bayan as in default. Pending
the administrative proceedings, Martinez was placed under preventive suspension for 60
days or until 8 August 2005.7
On 28 July 2005, the Sangguniang Bayan rendered its Decision which imposed upon
Martinez the penalty of removal from office. 8
The Decision dated 28 July 2005 was conveyed to the Municipal Mayor of Bayombong,
Nueva Ecija, Severino Bagasao, for its implementation. On 3 August 2005, Municial Mayor
Bagasao issued a Memorandum, wherein he stated that the Sanggunaing Bayan is not
empowered to order Martinez's removal from service. However, the Decision remains valid
until reversed and must be executed by him. For the meantime, he ordered the indefinite
suspension of Martinez since the period of appeal had not yet lapsed. 9 The dispositive
portion of the said Memorandum states that: 10
The FOREGOING considered come AUGUST 8, 2005, respondent SEVERINO D.
MARTINEZ is hereby directed NOT to ASSUME and DISCHARGE the functions of the
Office of the Punong Barangay of Barangay Don Mariano Marcos, Bayombong, Nueva
Vizcaya and for complainant JOSE CENEN SANTOS to CONTINUE assuming and
discharging the functions of the said office in ACTING CAPACITY pursuant to the
provisions of Sections 67 and 68 of Republic Act No. 7160.
On 26 August 2005, Martinez filed a Special Civil Action for Certiorari with a prayer for
Temporary Restraining Order and Preliminary Injunction before the trial court against
petitioner, the Sangguniang Bayan and Mayor Bagasao questioning the validity of the
Decision dated 28 July 2005 of the Sangguniang Bayan. This case was docketed as
Special Civil Action No. 6727, which was initially heard by Branch 28, but later raffled to
Branch 27 of the trial court.11
On 20 October 2005, the trial court issued an Order declaring the Decision of the
Sangguniang Bayan and the Memorandum of Mayor Bagasao void. It maintained that the
proper courts, and not the petitioner, are empowered to remove an elective local official
from office, in accordance with Section 60 of the Local Government Code. Thus, the Order
of the Sangguniang Bayan removing Martinez from service is void. As a consequence,
Mayor Bagasao cannot prevent Martinez from assuming his office on the basis of a void
order. The trial court further ruled that Martinez properly availed himself of the remedy of
Special Civil Action, where the order assailed was a patent nullity. 12
On 10 November 2005, petitioner filed a Motion for Reconsideration 13 of the trial court's
Order dated 10 October 2005. The trial court denied the said motion in another Order dated
30 November 2005.14
Hence, the present petition was filed.
Although Martinez's term as Punong Baranggay expired upon the holding of the 29 October
2007 Synchronized Barangay and Sangguniang Kabataan elections and, thus, rendering
Josef Elvin Campos
this petition moot and academic, the Court will nevertheless settle a legal question that is
capable of repetition yet evading review.15
The pivotal issue in this case is whether or not the Sangguniang Bayan may remove
Martinez, an elective local official, from office. The pertinent legal provisions and cases
decided by this Court firmly establish that the Sanggunaing Bayan is not empowered to do
so.
Section 60 of the Local Government Code conferred upon the courts the power to remove
elective local officials from office:
Section 60. Grounds for Disciplinary Actions. An elective local official may be disciplined,
suspended, or removed from office on any of the following grounds:
x x x x.
An elective local official may be removed from office on the grounds enumerated above by
order of the proper court. (Emphasis provided.)
During the deliberations of the Senate on the Local Government Code, 16 the legislative
intent to confine to the courts, i.e., regional trial courts, the Sandiganbayan and the
appellate courts, jurisdiction over cases involving the removal of elective local officials was
evident:
Senator Pimentel. This has been reserved, Mr. President, including the issue of whether or
not the Department Secretary or the Office of the President can suspend or remove an
elective official.
Senator Saguisag. For as long as that is open for some later disposition, may I just add the
following thought: It seems to me that instead of identifying only the proper regional
trial court or the Sandiganbayan, and since we know that in the case of a regional
trial court, particularly, a case may be appealed or may be the subject of an
injunction, in the framing of this later on, I would like to suggest that we consider
replacing the phrase "PROPER REGIONAL TRIAL COURT OR THE
SANDIGANBAYAN" simply by "COURTS." Kasi po, maaaring sabihin nila na mali iyong
regional trial court o ang Sandiganbayan.
Senator Pimentel. "OR THE PROPER COURT."
Senator Saguisag. "OR THE PROPER COURT."
Senator Pimentel. Thank you. We are willing to accept that now, Mr. President.
Senator Saguisag. It is to be incorporated in the phraseology that we will craft to capture the
other ideas that have been elevated. (Emphasis provided.)
In Salalima v. Guingona, Jr.,17 the Court en banc categorically ruled that the Office of the
President is without any power to remove elected officials, since the power is exclusively
vested in the proper courts as expressly provided for in the last paragraph of Section 60 of
the Local Government Code. It further invalidated Article 125, Rule XIX of the Rules and
Regulations Implementing the Local Government Code of 1991, which provided that:
Article 125. Grounds for Disciplinary Actions. x x x.
x x x x.
(b) An elective local official may be removed from office on the grounds enumerated in
paragraph (a) of this Article by order of the proper court or the disciplining authority
whichever first acquires jurisdiction to the exclusion of the other.
The Court nullified the aforequoted rule since the Oversight Committee that prepared the
Rules and Regulations of the Local Government Code exceeded its authority when it
granted to the "disciplining authority" the power to remove elective officials, a power which
the law itself granted only to the proper courts. Thus, it is clear that under the law, the
Sangguniang Bayan is not vested with the power to remove Martinez.
Petitioner contends that administrative cases involving elective barangay officials may be
filed with, heard and decided by the Sangguniang Panlungsod or Sangguniang Bayan
concerned, which can, thereafter, impose a penalty of removal from office. It further claims
that the courts are merely tasked with issuing the order of removal, after the Sangguniang
Panlungsod or Sangguniang Bayan finds that a penalty of removal is warranted. 18
The aforementioned position put forward by the petitioner would run counter to the rationale
for making the removal of elective officials an exclusive judicial prerogative. In Pablico v.
Villapando,19 the court declared that:
It is beyond cavil, therefore, that the power to remove erring elective local officials from
service is lodged exclusively with the courts. Hence, Article 124 (sic 125) 20 (b), Rule XIX, of
the Rules and Regulations Implementing the Local Government Code, insofar as it vests
power on the "disciplining authority" to remove from office erring elective local officials, is
void for being repugnant to the last paragraph of Section 60 of the Local Government Code
of 1991. The law on suspension or removal of elective public officials must be strictly
construed and applied, and the authority in whom such power of suspension or removal is
Josef Elvin Campos
vested must exercise it with utmost good faith, for what is involved is not just an ordinary
public official but one chosen by the people through the exercise of their constitutional right
of suffrage. Their will must not be put to naught by the caprice or partisanship of the
disciplining authority. Where the disciplining authority is given only the power to suspend
and not the power to remove, it should not be permitted to manipulate the law by usurping
the power to remove. (Emphasis supplied.)
The rule which confers to the proper courts the power to remove an elective local official
from office is intended as a check against any capriciousness or partisan activity by the
disciplining authority. Vesting the local legislative body with the power to decide whether or
not a local chief executive may be removed from office, and only relegating to the courts a
mandatory duty to implement the decision, would still not free the resolution of the case
from the capriciousness or partisanship of the disciplining authority. Thus, the petitioner's
interpretation would defeat the clear intent of the law.
Moreover, such an arrangement clearly demotes the courts to nothing more than an
implementing arm of the Sangguniang Panlungsod, or Sangguniang Bayan. This would be
an unmistakable breach of the doctrine on separation of powers, thus placing the courts
under the orders of the legislative bodies of local governments. The courts would be
stripped of their power of review, and their discretion in imposing the extreme penalty of
removal from office is thus left to be exercised by political factions which stand to benefit
from the removal from office of the local elective official concerned, the very evil which
Congress sought to avoid when it enacted Section 60 of the Local Government Code.
Congress clearly meant that the removal of an elective local official be done only after a trial
before the appropriate court, where court rules of procedure and evidence can ensure
impartiality and fairness and protect against political maneuverings. Elevating the removal
of an elective local official from office from an administrative case to a court case may be
justified by the fact that such removal not only punishes the official concerned but also, in
effect, deprives the electorate of the services of the official for whom they voted.
As the law stands, Section 61 of the Local Government Code provides for the procedure for
the filing of an administrative case against an erring elective barangay official before the
Sangguniang Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod
or Sangguniang Bayan cannot order the removal of an erring elective barangay official from
office, as the courts are exclusively vested with this power under Section 60 of the Local
Government Code. Thus, if the acts allegedly committed by the barangay official are of a
grave nature and, if found guilty, would merit the penalty of removal from office, the case
should be filed with the regional trial court. Once the court assumes jurisdiction, it retains
jurisdiction over the case even if it would be subsequently apparent during the trial that a
penalty less than removal from office is appropriate. On the other hand, the most extreme
penalty that the Sangguniang Panlungsod or Sangguniang Bayan may impose on the erring
elective barangay official is suspension; if it deems that the removal of the official from
service is warranted, then it can resolve that the proper charges be filed in court.
Petitioner alleged that an interpretation which gives the judiciary the power to remove local
elective officials violates the doctrine of separation of powers. This allegation runs contrary
to the 1987 Constitution itself, as well as jurisprudence.
The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the
authority of the courts to determine in an appropriate action the validity of acts of the
political departments. It speaks of judicial prerogative in terms of duty. 21 Paragraph 2,
Section 1, Article VIII of the 1987 Constitution, provides that:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis provided.)
The doctrine of separation of powers is not absolute in its application; rather, it should be
applied in accordance with the principle of checks and balances. The removal from office of
elective officials must not be tainted with partisan politics and used to defeat the will of the
voting public. Congress itself saw it fit to vest that power in a more impartial tribunal, the
court. Furthermore, the local government units are not deprived of the right to discipline
local elective officials; rather, they are prevented from imposing the extreme penalty of
dismissal.
Petitioner questions the Decision dated 20 October 2005 of the trial court for allowing the
petition filed before it as an exception to the doctrine of exhaustion of administrative
remedies. If, indeed, the Sangguniang Bayan had no power to remove Martinez from office,
Josef Elvin Campos
then Martinez should have sought recourse from the Sangguniang Panlalawigan. This Court
upholds the ruling of the trial court.
The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate
administrative authorities in the resolution of a controversy falling under their jurisdiction
before the same may be elevated to the courts of justice for review. Non-observance of the
doctrine results in lack of a cause of action, which is one of the grounds allowed by the
Rules of Court for the dismissal of the complaint. 22
The doctrine of exhaustion of administrative remedies, which is based on sound public
policy and practical consideration, is not inflexible. There are instances when it may be
dispensed with and judicial action may be validly resorted to immediately. Among these
exceptions are: 1) where there is estoppel on the part of the party invoking the doctrine;
2) where the challenged administrative act is patently illegal, amounting to lack of
jurisdiction; 3) where there is unreasonable delay or official inaction that will irretrievably
prejudice the complainant; 4) where the amount involved is relatively small as to make the
rule impractical and oppressive; 5) where the question raised is purely legal and will
ultimately have to be decided by the courts of justice; 6) where judicial intervention is
urgent; 7) where its application may cause great and irreparable damage; 8) where the
controverted acts violate due process; 9) when the issue of non-exhaustion of
administrative remedies has been rendered moot; 10) where there is no other plain, speedy
and adequate remedy; 11) when strong public interest is involved; and 13) in quo
warranto proceedings.23
As a general rule, no recourse to courts can be had until all administrative remedies have
been exhausted. However, this rule is not applicable where the challenged administrative
act is patently illegal, amounting to lack of jurisdiction and where the question or questions
involved are essentially judicial.
In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction when it
issued the assailed Order dated 28 July 2005 removing Martinez from office. Such act was
patently illegal and, therefore, Martinez was no longer required to avail himself of an
administrative appeal in order to annul the said Order of the Sangguniang Bayan. 24 Thus,
his direct recourse to regular courts of justice was justified.
In addition, this Court in Castro v. Gloria25 declared that where the case involves only legal
questions, the litigant need not exhaust all administrative remedies before such judicial
relief can be sought. The reason behind providing an exception to the rule on exhaustion of
administrative remedies is that issues of law cannot be resolved with finality by the
administrative officer. Appeal to the administrative officer would only be an exercise in
futility. A legal question is properly addressed to a regular court of justice rather than to an
administrative body.26
In the present case, Martinez raised before the trial court the sole issue of whether the
Sangguniang Bayan has jurisdiction over a case involving the removal of a local elective
official from office.27 In Martinez's petition before the trial court, only a legal question was
raised, one that will ultimately be resolved by the courts. Hence, appeal to the
administrative officer concerned would only be circuitous and, therefore, should no longer
be required before judicial relief can be sought.
IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision
of the Bayombong RTC in Special Civil Action No. 6727 is AFFIRMED.
SO ORDERED.
Ynares-Santiago, J., Chairperson, Austria-Martinez,, Nachura, Reyes, JJ., concur.
Lingating v. COMELEC (G.R. No. 153478, November 13, 2002)

G.R. No. 153475. November 13, 2002
ATTY. MIGUEL M. LINGATING, Petitioner, vs. COMMISSION ON ELECTIONS and
CESAR B. SULONG, respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari to set aside the resolution, 1 dated April 4, 2002, of the
Commission on Elections (COMELEC) en banc, reversing the resolution,2 dated August 1,
2001, of its First Division and dismissing the petition for disqualification filed by petitioner
Miguel M. Lingating against respondent Cesar B. Sulong as candidate for mayor of
Lapuyan, Zamboanga del Sur in the May 14, 2001 elections.
On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian City a
petition for the disqualification of respondent Sulong, pursuant to 40(b) of Republic Act No.
7160 (Local Government Code), which disqualifies from running for any elective local
position those removed from office as a result of an administrative case. 3 It appears that
Josef Elvin Campos
respondent Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the
May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for
disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan,
respondent Sulong, along with a municipal councilor of Lapuyan and several other
individuals,4 was administratively charged (AC No. 12-91) with various offenses, 5 and that,
on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him
guilty of the charges and ordered his removal from office. Petitioner claimed that this
decision had become final and executory, and consequently the then vice-mayor of
Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3,
1992.6cräläwvirtualibräry
Respondent Sulong denied that the decision in AC No. 12-91 had become final and
executory. He averred that after receiving a copy of the decision on February 17, 1992, he
filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that
on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the
complainant in AC No. 12-91, to comment on respondent Sulongs motion for
reconsideration and/or notice of appeal; that the said complainant had not yet complied
therewith and his (respondent Sulongs) motion had consequently remained pending.
Respondent Sulong denied he had been removed from office by virtue of the decision in AC
No. 12-91.
After the parties had filed their memoranda, the case was submitted for resolution. Because
the COMELEC was unable to render judgment before the elections of May 14, 2001,
respondent Sulong was voted for in the elections, receiving 4,882 votes as against the
3,611 votes for petitioner. On May 16, 2001, respondent Sulong was proclaimed by the
Municipal Board of Canvassers of Lapuyan as the duly elected mayor of that municipality.
In a resolution dated August 1, 2001, the COMELECs First Division declared respondent
Cesar B. Sulong disqualified. It held:
Section 40(b) of the Local Government Code is clear that any person removed from office
by reason of an administrative case is disqualified from running for any elective local office.
From such point, it is clear that Respondent Sulong was declared guilty of having violated
the Anti-Graft and Corrupt Practices Act by the Sangguniang Panlalawigan of Zamboanga
del Sur. . .which. . .has become final and executory, thereby depriving him of his right to run
for public office.
....
WHEREFORE, in the light of the foregoing, this Commission hereby resolves to GRANT
this Petition and DISQUALIFY Respondent Cesar B. Sulong to run for Municipal mayor for
Lapuyan, Zamboanga del Sur in the May 14, 2001 Elections in violation of Section 40[b] of
the Local Government Code.7cräläwvirtualibräry
Respondent Sulong filed a motion for reconsideration citing a certification, dated August 7,
2001, of Provincial Secretary of Zamboanga del Sur (OIC) Wilfredo Cimafranca that the
decision in AC No. 12-91 has not become final and executory as the final disposition thereof
was overtaken by the local elections of May 1992. He reiterated his claim that at no time
had he been removed by virtue of the said decision. 8cräläwvirtualibräry
Petitioner filed an opposition contending, among other things, that the fact that Zamboanga
del Sur Governor Ariosa had ordered the enforcement of the decision signified that
respondent Sulongs motion for reconsideration and/or notice of appeal had not been given
due course by the Sangguniang Panlalawigan; and that respondent Sulongs claim that he
had not been removed from office was belied by the fact that he (respondent Sulong)
brought charges against Vicente Imbing for Usurpation of Official Functions (I.S. No. 92-35),
in support of which respondent Sulong attested under oath that Imbing had succeeded him
as mayor of Lapuyan.9cräläwvirtualibräry
In a separate motion, petitioner prayed that the resolution of August 1, 2001 be executed
and that he be installed as mayor of Lapuyan in view of private respondents disqualification.
On August 30, 2001, the COMELECs First Division denied petitioners motion for execution
on the ground that the disqualification of an elected candidate does not entitle the candidate
who obtained the second highest number of votes to occupy the office vacated. 10 Petitioner
then filed a motion for reconsideration of this order. 11cräläwvirtualibräry
On April 4, 2002, the COMELEC en banc issued its resolution subject of the petition in this
case, reversing the resolution, dated August 1, 2001, of its First Division insofar as it found
respondent Sulong disqualified from running as mayor. It held:
The only issue in this case is whether or not the foregoing decision [in AC No. 12-91],
assuming it has become final and executory, constitutes a ground for the disqualification of
herein respondent-movant as a candidate in the elections [of May 14, 2001].
Josef Elvin Campos
The records of the case reveal that the decision of the Sangguniang Panlalawigan was
promulgated on February [4], 1992 finding respondent Sulong guilty of dishonesty,
falsification of public documents, malversation. . .
In the May 1992 elections, respondent Sulong was re-elected mayor of Lapuyan,
Zamboanga del Sur despite the decision of the Sangguniang dismissing him from office. In
the 1995 May elections, respondent Sulong ran and won the mayoralty elections of
Lapuyan, Zamboanga del Sur.
While it is true that one of the disqualifications from running in an elective position is
removal from office as a result of an administrative case, said provision no longer applies if
the candidate whose qualification is questioned got re-elected to another term. In Aguinaldo
vs. Santos, 212 SCRA 768, the Supreme Court ruled that re-election renders an
administrative case moot and academic.
....
Obviously, the re-election of [r]espondent Sulong in the 1992 and 1995 elections would be
tantamount to a condonation of the Sangguniang Panlalawigan decision promulgated 04
February 1992 which found him guilty of dishonesty, malversation of public funds etc[.],
granting said decision has become final and executory.
Moreover, the people of LAPUYAN have already expressed their will when they cast their
votes in the recent elections as evidenced by the results which found respondent Sulong to
have won convincingly.
....
WHEREFORE, premises considered, the Commission En Banc RESOLVED as it hereby
RESOLVES to reverse the First Division Resolution [dated August 1, 2001] and DISMISS
the petition for lack of merit.12cräläwvirtualibräry
The COMELEC en banc also ruled that, in any event, respondent Sulong was not entitled to
occupy the office thus vacated. Hence, this petition by Lingating.
Petitioner contends that the COMELEC en banc erred in applying the ruling in Aguinaldo v.
Commission on Elections13 in holding that the reelection of respondent Sulong in 1992 and
1995 as mayor of Lapuyan had the effect of condoning the misconduct for which he was
ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner
cites Reyes v. Commission on Elections 14 in which we held that an elective local executive
officer, who is removed before the expiration of the term for which he was elected, is
disqualified from being a candidate for a local elective position under 40(b) of the Local
Government Code.
We stated in Reyes:
Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public
official could not be removed for misconduct committed during a prior term and that his
reelection operated as a condonation of the officers previous misconduct to the extent of
cutting off the right to remove him therefor. But that was because in that case, before the
petition questioning the validity of the administrative decision removing petitioner could be
decided, the term of office during which the alleged misconduct was committed expired.
Removal cannot extend beyond the term during which the alleged misconduct was
committed. If a public official is not removed before his term of office expires, he can no
longer be removed if he is thereafter reelected [for] another term. This is the rationale for
the ruling in the two Aguinaldo cases.
The case at bar is the very opposite of those cases. Here, . . . the decision in the
administrative case, . . . was served on petitioner and it thereafter became final on April 3,
1995, because petitioner failed to appeal to the Office of the President. He was thus validly
removed from office and, pursuant to 40(b) of the Local Government Code, he was
disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided there was no provision
similar to 40(b) which disqualifies any person from running for any elective position on the
ground that he has been removed as a result of an administrative case. The Local
Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect.
However, Reyes cannot be applied to this case because it appears that the 1992 decision
of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty,
falsification and malversation of public funds, has not until now become final. The records of
this case show that the Sangguniang Panlalawigan of Zamboanga del Sur rendered
judgment in AC No. 12-91 on February 4, 1992, a copy of which was received by
respondent Sulong on February 17, 1992; that on February 18, 1992, he filed a motion for
reconsideration and/or notice of appeal; that on February 27, 1992, the Sangguniang
Panlalawigan, required Jim Lingating, the complainant in AC No. 12-91, to comment; and
that the complainant in AC No. 12-91 has not filed a comment nor has the Sangguniang
Josef Elvin Campos
Panlalawigan resolved respondents motion. The filing of his motion for reconsideration
prevented the decision of Sangguniang Panlalawigan from becoming final.
While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for
reconsideration, the same cannot be interpreted as a prohibition against the filing of a
motion for reconsideration. Thus, it was held 15 that a party in a disbarment proceeding
under Rule 139-B, 12(c) can move for a reconsideration of a resolution of the Integrated Bar
of the Philippines although Rule 139-B does not so provide:
Although Rule 139-B, 12(c) makes no mention of a motion for reconsideration, nothing in its
text or history suggests that such motion is prohibited. It may therefore be filed . . . . Indeed,
the filing of such motion should be encouraged before [an appeal is] resort[ed] to . . . as a
matter of exhaustion of administrative remedies, to afford the agency rendering the
judgment [an] opportunity to correct any error it may have committed through a
misapprehension of facts or misappreciation of evidence.
There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of
Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply
considered the matter as having become moot and academic because it was overtaken by
the local elections of May [11,]1992.
Neither can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, and the
highest ranking municipal councilor of Lapuyan, Romeo Tan, to the offices of mayor and
vice-mayor, respectively, be considered proof that the decision in AC No. 12-91 had
become final because it appears to have been made pursuant to 68 16 of the Local
Government Code, which makes decisions in administrative cases immediately executory.
Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondents
motion, it is unfair to the electorate to be told after they have voted for respondent Sulong
that after all he is disqualified, especially since, at the time of the elections on May 14, 2001,
the decision of the Sangguniang Panlalawigan had been rendered nearly ten years ago.
Having come to the conclusion that respondent Sulong is not disqualified from holding the
position of mayor of Lapuyan, it is unnecessary to pass upon petitioners contention that, as
the candidate who obtained the second highest number of votes, he is entitled to be
installed as mayor because the votes cast in favor of respondent Sulong were void.
WHEREFORE, the petition for certiorari is DISMISSED and the resolution, dated April 4,
2002, of the COMELEC en banc, dismissing petitioners petition for disqualification, is
AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Corona, Morales, Callejo, Sr., and Azcuna, JJ., concur.
Austria-Martinez, J., on leave.
Secs. 13, 21, and 24, R.A. 6770

SECTION 13. Naming of Local Government Units and Public Places,
Streets and Structures. –
(a) The sangguniang panlalawigan may, in consultation with the
Philippine Historical Commission (PHC), change the name of the
following within its territorial jurisdiction:
(1) Component cities and municipalities, upon the
recommendation of the sanggunian concerned;
(2) Provincial roads, avenues, boulevards, thoroughfares, and
bridges;
(3) Public vocational or technical schools and other post-
secondary and tertiary schools;
(4) Provincial hospitals, health centers, and other health
facilities; and
(5) Any other public place or building owned by the provincial
government.
(b) The sanggunians of highly urbanized cities and of component cities
whose charters prohibit their voters from voting for provincial elective
officials, hereinafter referred to in this Code as independent
component cities, may, in consultation with the Philippine Historical
Commission, change the name of the following within its territorial
jurisdiction:
(1) City barangays, upon the recommendation of the
sangguniang barangay concerned;
Josef Elvin Campos
(2) City roads, avenues, boulevards, thoroughfares, and
bridges;
(3) Public elementary, secondary and vocational or technical
schools, community colleges and non-chartered colleges;
(4) City hospitals, health centers and other health facilities; and
(5) Any other public place or building owned by the city
government.
(c) The sanggunians of component cities and municipalities may, in
consultation with the Philippine Historical Commission, change the
name of the following within its territorial jurisdiction:
(1) City and municipal barangays, upon recommendation of the
sangguniang barangay concerned;
(2) City, municipal and barangay roads, avenues, boulevards,
thoroughfares, and bridges;
(3) City and municipal public elementary, secondary and
vocational or technical schools, post-secondary and other
tertiary schools;
(4) City and municipal hospitals, health centers and other
health facilities; and
(5) Any other public place or building owned by the municipal
government.
(d) None of the foregoing local government units, institutions, places,
or buildings shall be named after a living person, nor may a change of
name be made unless for a justifiable reason and, in any case, not
oftener than once every ten (10) years. The name of a local
government unit or a public place, street or structure with historical,
cultural, or ethnic significance shall not be changed, unless by a
unanimous vote of the sanggunian concerned and in consultation with
the PHC.
(e) A change of name of a public school shall be made only upon the
recommendation of the local school board concerned.
(f) A change of name of public hospitals, health centers, and other
health facilities shall be made only upon the recommendation of the
local health board concerned.
(g) The change of name of any local government unit shall be effective
only upon ratification in a plebiscite conducted for the purpose in the
political unit directly affected.
(h) In any change of name, the Office of the President, the
representative of the legislative district concerned, and the Bureau of
Posts shall be notified.
SECTION 21. Closure and Opening of Roads. –

(a) A local government unit may, pursuant to an ordinance,
permanently or temporarily close or open any local road, alley, park, or
square falling within its jurisdiction: Provided, however, That in case of
permanent closure, such ordinance must be approved by at least two-
thirds (2/3) of all the members of the sanggunian, and when
necessary, an adequate substitute for the public facility that is subject
to closure is provided.
(b) No such way or place or any part thereof shall be permanently
closed without making provisions for the maintenance of public safety
therein. A property thus permanently withdrawn from public use may
be used or conveyed for any purpose for which other real property
belonging to the local government unit concerned may be lawfully
used or conveyed: Provided, however, That no freedom park shall be
closed permanently without provision for its transfer or relocation to a
new site.
(c) Any national or local road, alley, park, or square may be
temporarily closed during an actual emergency, or fiesta celebrations,
public rallies, agricultural or industrial fairs, or an undertaking of public
works and highways, telecommunications, and waterworks projects,
the duration of which shall be specified by the local chief executive
concerned in a written order: Provided, however, That no national or
Josef Elvin Campos
local road, alley, park, or square shall be temporarily closed for
athletic, cultural, or civic activities not officially sponsored, recognized,
or approved by the local government unit concerned.
(d) Any city, municipality, or barangay may, by a duly enacted
ordinance, temporarily close and regulate the use of any local street,
road, thoroughfare, or any other public place where shopping malls,
Sunday, flea or night markets, or shopping areas may be established
and where goods, merchandise, foodstuffs, commodities, or articles of
commerce may be sold and dispensed to the general public.
SECTION 24. Liability for Damages. – Local government units and
their officials are not exempt from liability for death or injury to persons
or damage to property.
Cases:
Hagad v. Gozo-Dadole (G.R. No. 108072, December 12, 1995)
[G.R. No. 108072. December 12, 1995.]
HON. JUAN M. HAGAD, in his capacity as Deputy Ombudsman for the

Visayas, Petitioner, v. HON. MERCEDES GOZODADOLE, Presiding Judge, Branch
XXVIII, Regional Trial Court, Mandaue City, Mandaue City Mayor ALFREDO M.
OUANO, Mandaue City Vice-Mayor PATERNO CAÑETE and Mandaue City
Sangguniang Panlungsod Member RAFAEL MAYOL, Respondents.
DECISION
VITUG, J.:
The determination of whether the Ombudsman under Republic Act ("R.A.") No. 6770, 1
otherwise known as the Ombudsman Act of 1989, has been divested of his country to
conduct administrative investigation over local elective officials by virtue of the subsequent
enactment of R.A. No. 7160, 2 otherwise known as the Local Government Code of 1991, is
the pivotal issue before the court in this petition.
The petition seeks (a) to annul the writ of preliminary injunction, dated 21 October 1992,
issued against petitioner by respondent trial court and (b) to prohibit said court from further
proceeding with RTC Case No. MDE-14. 3
Parenthetically, Deputy Ombudsman for the Visayas Arturo Mojica assumed the office of
Juan Hagad, now resigned, 4 who took the initiative in instituting this special civil action
for certiorari and prohibition.
The controversy stemmed from the filing of criminal and administrative complaints, on 22
July 1992, against herein respondents Mayor Alfredo Ouano, Vice-Mayor Paterno Cañete
and Sangguniang Panlungsod Member Rafael Mayol, all public officials of Mandaue City, by
Mandaue City Councilors Magno B. Dionson and Gaudiosa O. Bercede with the Office of
the Deputy Ombudsman for the Visayas. The respondents were charged with having
violated R.A No. 3019, as amended; 5 Articles 170 6 and 171 7 of the Revised Penal Code;
and R.A. No. 6713. 8 Councilors Dionson and Bercede averred that respondent officials,
acting in conspiracy, had caused the alteration and/or falsification of Ordinance No. 018/92
by increasing the allocated appropriation therein from P3,494,364.57 to P7,000,000.00
without authority from the Sangguniang Panlungsod of Mandaue City. The complaints were
separately docketed as Criminal Case No. OMB-VIS-92-391 and as Administrative Case
No. OMB-VIS-ADM-92-015.
A day after the filing of the complaints, or on 23 July 1992, a sworn statement was executed
by Mandaue City Council Secretary, Atty. Amado C. Otarra, Jr., in support of the
accusations against respondent officials. The next day, petitioner ordered respondents,
including Acting Mandaue City Treasurer Justo G. Ouano and Mandaue City Budget Officer
Pedro M. Guido, to file their counter-affidavits within ten (10) days from receipt of the order
Forthwith, Councilors Dionson and Bercede moved for the preventive suspension of
Josef Elvin Campos
respondent officials in the separately docketed administrative case.
Aside from opposing the motion for preventive suspension, respondent officials, on 05
August 1992, prayed for the dismissal of the complaint on the ground that the Ombudsman
supposedly was bereft of jurisdiction to try, hear and decide the administrative case filed
against them since, under Section 63 of the Local Government Code of 1991, the power to
investigate and impose administrative sanctions against said local officials, as well as to
effect their preventive suspension, had now been vested with the Office of the President. In
their opposition, filed on 10 August 1992, Dionson and Bercede argued that the Local
Government Code of 1991 could not have repealed, abrogated or otherwise modified the
pertinent provisions of the Constitution granting to the Ombudsman the power to investigate
cases against all public officials and that, in any case, the power of the Ombudsman to
investigate local officials under the Ombudsman Act had remained unaffected by the
provisions of the Local Government Code of 1991.
During the hearing on the motion for preventive suspension, the parties were directed by
the Deputy Ombudsman to file their respective memoranda.
In his memorandum, Mayor Ouano reiterated that, under Sections 61 and 63 of the Local
Government Code of 1991, the Office of the President, not the Office of the Ombudsman,
could lawfully take cognizance of administrative complaints against an elective official of a
province, a highly urbanized city or an independent component city and to impose
disciplinary sanctions, including preventive suspensions, and that there was nothing in the
provision of the Constitution giving to the Office of the Ombudsman superior powers than
those of the President over elective officials of local governments.
In an Order, 9 dated 10 September 1992, the Office of the Deputy Ombudsman denied the
motion to dismiss and recommended the preventive suspension of respondent officials,
except City Budget Officer Pedro M. Guido, until the administrative case would have been
finally resolved by the Ombudsman. 10 Respondent officials were formally placed under
preventive suspension by the Deputy Ombudsman pursuant to an Order 11 of 21
September 1992.
On 25 September 1992, a petition for prohibition, with prayer for a writ of preliminary
injunction and temporary restraining order, was filed by respondent officials with the
Regional Trial Court of Mandaue City. Acting favorably on the pleas of petitioning officials,
respondent Judge issued, on even date, a restraining order directed at petitioner, enjoining
him." . . from enforcing and/or implementing the questioned order of preventive suspension
issued in OMB-VIS-ADM-92-015."cralaw virtua1aw library
Petitioner moved to dismiss the petition but it was to no avail The court a quo, on 15
October 1992, denied the motion to dismiss and issued an Order for the issuance of a writ
of preliminary injunction, holding thusly:jgc:chanrobles.com.ph
"So by following and applying the well-established rules of statutory construction that
endeavor should be made to harmonize the provisions of these two laws in order that each
shall be effective, it is the finding of this Court that since the investigatory power of the
Ombudsman is so general, broad and vague and gives wider discretion to disciplining
authority to impose administrative sanctions against a responsible public official or
employee while that of Section 60 of the New Local Government Code provides for more
well defined and specific grounds upon which a local elective official can be subjected to
administrative disciplinary action, that it could be considered that the latter law could be an
exception to the authority and administrative power of the Ombudsman to conduct an
investigation against local elective officials and as such, the jurisdiction now to conduct
administrative investigation against local elective officials is already lodged before the
offices concerned under Section 61 of Republic Act No. 7160.
"x x x
"WHEREFORE, foregoing premises considered, Order is hereby

issued:jgc:chanrobles.com.ph
"1) Expanding the restraining order dated September 25, 1992 issued by the Court into an
Josef Elvin Campos
Order for the issuance of a writ of preliminary injunction upon the posting of the petitioners
of the bond in the amount of Fifty thousand pesos (P50,000.00) conditioned that the latter
will pay all the costs that may be adjudged to the adverse party and/or damages which he
may sustain by reason of the injunction, if the Court will finally adjudge that the petitioners
are not entitled thereto; and
"2) Denying the respondent’s Motion to Dismiss dated September 28, 1992 for lack of merit.
"SO ORDERED." 12
A writ of preliminary injunction was issued on 21 October 1992. 13 A motion for

reconsideration made by petitioner was denied by the trial court.
The instant recourse seeks the nullification of the order of 15 October 1992 and the writ of
preliminary injunction of 21 October 1992 both issued by the trial court and prays that
respondent judge be directed to desist from further proceeding with RTC Case No. MDE-14.
There is merit in the petition.
The general investigatory power of the Ombudsman is decreed by Section 13(1,) Article XI,
of the 1987 Constitution, 14 thus:jgc:chanrobles.com.ph
"Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and
duties:jgc:chanrobles.com.ph
"(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;"
while his statutory mandate to act on administrative complaints is contained in Section 19 of

R.A. No. 6770 that reads:jgc:chanrobles.com.ph
"Sec. 19. Administrative complaints. — The Ombudsman shall act on all complaints relating,
but not limited, to acts or omissions which:chanrob1es virtual 1aw library
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency’s functions, though in accordance
with law;
4. Proceed from a mistake of law or an arbitrary ascertainment of facts;
5. Are in the exercise of discretionary powers but for an improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification."cralaw virtua1aw library
Section 21 of the same statute names the officials who could be subject to the disciplinary
authority of the Ombudsman viz:jgc:chanrobles.com.ph
"Sec. 21. Officials Subject to Disciplinary Authority Exceptions. — The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of the
Government and its subdivisions. instrumentalities and agencies, including Members of the
Cabinet local government, government-owned or controlled corporations and their
subsidiaries except over officials who may be removed only by impeachment or over
Members of Congress and the Judiciary." (Emphasis supplied)
Taken in conjunction with Section 24 of R.A. No. 6770, petitioner thus contends that the
Office of the Ombudsman correspondingly has the authority to decree preventive
suspension on any public officer or employee under investigation by it. Said section of the
law provides:jgc:chanrobles.com.ph
Josef Elvin Campos
"Sec 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in his
judgment, the evidence of guilt is strong, and a) the charge against such officer or employee
involves dishonesty, oppression or grave misconduct or neglect in the performance of duty;
(b) the charges would warrant removal from the service; or (c) the respondent’s continued
stay in office may prejudice the case filed against him.
"The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided."cralaw virtua1aw library
Respondent officials, upon the other hand, argue that the disciplinary authority of the
Ombudsman over local officials must be deemed to have been removed by the subsequent
enactment of the Local Government Code of 1991 which vests the authority to investigate
administrative charges, listed under Section 60 15 thereof, on various offices In the case
specifically of complaints against elective officials of provinces and highly urbanized cities
the Code states:jgc:chanrobles.com.ph
"SEC. 61. Form and Filing of Administrative Complaints. — A verified complaint against any
erring local elective officials shall be prepared as follows:jgc:chanrobles.com.ph
"(a) A complaint against any elective official of a province, a highly urbanized city, an
independent component city or component city shall be filed before the Office of the
President."cralaw virtua1aw library
Thus, respondents insist, conformably with Section 63 of the Local Government Code,
preventive suspension can only be imposed by: ". . . the President if the respondent is an
elective official of a province, a highly urbanized or an independent component city; . . ."
under sub-paragraph (b) thereof:jgc:chanrobles.com.ph
"(b) Preventive suspension may be imposed at any time after the issues are joined, when
the evidence of guilt is strong, and given the gravity of the offense, there is great probability
that the continuance in office of the respondent could influence the witnesses or pose a
threat to the safety and integrity of the records and other evidence; Provided, That any
single preventive suspension of local elective officials shall not extend beyond sixty (60)
days: Provided, further, That in the event that several administrative cases are filed against
an elective official, he cannot be preventively suspended for more than ninety (90) days
within a single year on the same ground or grounds existing and known at the time of the
first suspension."cralaw virtua1aw library
In his comment, which the Court required considering that any final resolution of the case
would be a matter of national concern, the Solicitor- General has viewed the Local
Government Code of 1991 as having conferred, but not on an exclusive basis, on the Office
of the President (and the various Sanggunians) disciplinary authority over local elective
officials. He posits the stand that the Code did not withdraw the power of the Ombudsman
theretofore vested under R.A. 6770 conformably with a constitutional mandate. In passing,
the Solicitor General has also opined that the appropriate remedy that should have been
pursued by respondent officials is a petition for certiorari before this Court rather than their
petition for prohibition filed with the Regional Trial Court.
Indeed, there is nothing in the Local Government Code to indicate that it has repealed,
whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two
statutes on the specific matter in question are not so inconsistent, let alone irreconcilable,
as to compel us to only uphold one and strike down the other. Well settled is the rule that
repeals of laws by implication are not favored, 16 and that courts must generally assume
their congruent application. 17 The two laws must be absolutely incompatible, 18 and a
clear finding thereof must surface, before the inference of implied repeal may be drawn. 19
The rule is expressed in the maxim, interpretare et concordare legibus esf optimus
interpretendi, i e, every statute must be so interpreted and brought into accord with other
laws as to form a uniform system of jurisprudence. 20 The fundament is that the legislature
should be presumed to have known the existing laws on the subject and not to have
Josef Elvin Campos
enacted conflicting statutes. 21 Hence, all doubts must be resolved against any implied
repeal, 22 and all efforts should be exerted in order to harmonize and give effect to all laws
on the subject. 23
Certainly, Congress would not have intended to do injustice to the very reason that
underlies the creation of the Ombudsman in the 1987 Constitution which "is to insulate said
office from the long tentacles of officialdom." 24
Quite interestingly, Sections 61 and 63 of the present Local Government Code run almost
parallel with the provisions then existing under the old code. Section 61 and Section 63 of
the precursor Local Government Code of 1983, 25 under the heading of "Suspension and
Removal," read:chanrob1es virtual 1aw library
‘SEC. 61. Form and Filing of Complaints. — Verified complaints against local elective
officials shall be prepared as follows:jgc:chanrobles.com.ph
"(a) Against any elective provincial or city official, before the Minister of Local
Government."cralaw virtua1aw library
"SEC. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the
Minister of Local Government if the respondent is an provincial or city official, by the
provincial governor if the respondent is an elective municipal official, or by the city or
municipal mayor if the respondent is an elective barangay official.
"(2) Preventive suspension may be imposed at any time after the issues are joined, when
there is reasonable ground to believe that the respondent has committed the act or acts
complained of, when the evidence of culpability is strong, when the gravity of the offense so
warrants, or when the continuance in office of the respondent could influence the witnesses
or pose a threat to the safety and integrity of the records and other evidence. In all cases,
preventive suspension shall not extend beyond sixty days after the start of said suspension.
"(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in
office without prejudice to the continuation of the proceedings against him until its
termination. However, if the delay in the proceedings of the case is due to his fault, neglect
or request, the time of the delay shall not be counted in computing the time of
suspension."cralaw virtua1aw library
The authority to conduct administrative investigation and to impose preventive suspension

over elective provincial or city officials was at that time entrusted to the Minister of Local
Government until it became concurrent with the Ombudsman upon the enactment of R.A
No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant
The Local Government Code of 1991 (R.A No. 7160), in fine, did not effect a change from
what already prevailed, the modification being only in the substitution of the Secretary (the
Minister) of Local Government by the Office of the President.
Respondent local officials contend that the 6-month preventive suspension without pay
under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive
suspension provided by Section 63 of the Local Government Code to even now maintain its
application. The two provisions govern differently. In order to justify the preventive
suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt
should be strong, and (a) the charge against the officer or employee should involve
dishonestly, oppression or grave misconduct or neglect in the performance of duty; (b) that
charges should warrant removal from the service; or (c) the respondent’s continued stay in
office would prejudice the case filed against him. The Ombudsman can impose the 6-month
preventive suspension to all public officials, whether elective or appointive, who are under
investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of
preventive suspension prescribed in the Local Government Code of 1991 on an elective
local official (at any time after the issues are joined), it would be enough that (a) there is
reasonable ground to believe that the respondent has committed the act or acts complained
of, (b) the evidence of culpability is strong,(c) the gravity of the offense so warrants, or (d)
the continuance in office of the respondent could influence the witnesses or pose a threat to
the safety and integrity of the records and other evidence.
Josef Elvin Campos
Respondent officials, nevertheless, claim that petitioner committed grave abuse of
discretion when he caused the issuance of the preventive suspension order without any
hearing.
The contention is without merit. The records reveal that petitioner issued the order of
preventive suspension after the filing (a) by respondent officials of their opposition on the
motion for preventive suspension and (b) by Mayor Ouano of his memorandum in
compliance with the directive of petitioner Be that, as it may, we have heretofore held that,
not being in the nature of a penalty, a preventive suspension can be decreed on an official
under investigation after charges are brought and even before the charges are heard.
Naturally, such a preventive suspension would occur prior to any finding of guilt or
innocence. In the early case of Nera v. Garcia, 26 reiterated in subsequent cases, 27 we
have said:jgc:chanrobles.com.ph
"In connection with the suspension of petitioner before he could file his answer to the
administrative complaint, suffice it to say that the suspension was not a punishment or
penalty for the acts of dishonesty and misconduct in office, but only as a preventive
measure. Suspension is a preliminary step in an administrative investigation. If after such
investigation, the charges are established and the person investigated is found guilty of acts
warranting his removal, then he is removed or dismissed. This is the penalty. There is,
therefore, nothing improper in suspending an officer pending his investigation and before
the charges against him are heard and be given an opportunity to prove his
innocence."cralaw virtua1aw library
Moreover, respondent officials were, in point of fact, put on preventive suspension only after
petitioner had found, in consonance with our ruling in Buenaseda v. Flavier, 28 that the
evidence of guilt was strong. Petitioner gave his justification for the preventive suspension
in this wise:jgc:chanrobles.com.ph
"After a careful and honest scrutiny of the evidence submitted on record, at this stage, it is
the holding of this office that the evidence of guilt against the respondents in the instant
case is strong. There is no question that the charge against the respondents involves
dishonesty or gross misconduct which would warrant their removal from the service and
there is no gainsaying the fact that the charge for falsification of veritable documents like
city ordinances are very serious charges that affect the very foundations of duly established
representative governments Finally, it is likewise the holding of this office at this stage that
the continued stay in office of respondents may prejudice the judicious investigation and
resolution of the instant case." 29
Finally, it does appear, as so pointed out by the Solicitor General that respondent officials’
petition for prohibition, being an application for remedy against the findings of petitioner
contained in his 21 September 1992 order, should not have been entertained by the trial
court. The proscription in Section 14 of R A. No. 6770 reads:jgc:chanrobles.com.ph
"SEC 14. Restrictions. — No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is a prima
facie evidence that the subject matter of the investigation is outside the jurisdiction of the
Office of the Ombudsman.
"No court shall hear any appeal or application for remedy against the decision or findings of
the Ombudsman, except the Supreme Court, on pure question of law."cralaw virtua1aw
library
Likewise noteworthy is Section 27 of the law which prescribes a direct recourse to this Court
on matters involving orders arising from administrative disciplinary cases originating from
the Office of the Ombudsman; thus:jgc:chanrobles.com.ph
"SEC. 27. Effectivity and Finality of Decisions. — . . .
"In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within
ten (10) days from receipt of the written notice of the order, directive or decision or denial of
the motion for reconsideration in accordance with Rule 45 of the Rules of Court." (Emphasis
Josef Elvin Campos
supplied)
All told, petitioner is plainly entitled to the relief prayed for, and we must, accordingly, grant
the petition.
WHEREFORE, the questioned writ of preliminary injunction of 21 October 1992 is

ANNULLED and SET ASIDE, and RTC Case No. MDE-14 is hereby ordered DISMISSED.
No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Kapunan,

Mendoza, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.
Davide, Jr., J., took no part.
Office of the Ombudsman v. Rodriguez (G.R. No. 172700, July 23,

2010)
[G.R. No. 172700 : July 23, 2010]
OFFICE OF THE OMBUDSMAN, PETITIONER, VS. ROLSON RODRIGUEZ,

RESPONDENT.
DECISION
CARPIO, J.:
The Case
This is a petition for review[1] of the 8 May 2006 Decision[2] of the Court of Appeals in CA-
G.R. SP No. 00528 setting aside for lack of jurisdiction the 21 September 2004 Decision [3] of
the Ombudsman (Visayas) in OMB-V-A-03-0511-H.
The Antecedent Facts
On 26 August 2003, the Ombudsman in Visayas received a complaint [4] for abuse of

authority, dishonesty, oppression, misconduct in office, and neglect of duty against Rolson
Rodriguez, punong barangay in Brgy. Sto. Rosario, Binalbagan, Negros Occidental. On 1
September 2003, the sangguniang bayan of Binalbagan, Negros Occidental, through vice-
mayor Jose G. Yulo, received a similar complaint [5] against Rodriguez for abuse of authority,
dishonesty, oppression, misconduct in office, and neglect of duty.
In its 8 September 2003 notice,[6] the municipal vice-mayor required Rodriguez to submit his
answer within 15 days from receipt of the notice. On 23 September 2003, Rodriguez filed a
motion to dismiss[7] the case filed in the sangguniang bayan on the ground that the
allegations in the complaint were without factual basis and did not constitute any violation of
law. In a compliance[8] dated 22 October 2003, Rodriguez alleged complainants violated the
rule against forum shopping.
Meanwhile, in its 10 September 2003 order, [9] the Ombudsman required Rodriguez to file his
answer. Rodriguez filed on 24 October 2003 a motion to dismiss [10] the case filed in the
Ombudsman on the grounds of litis pendentia and forum shopping. He alleged that
the sangguniang bayan had already acquired jurisdiction over his person as early as 8
September 2003.
The municipal vice-mayor set the case for hearing on 3 October 2003. [11] Since
complainants had no counsel, the hearing was reset to a later date. When the case was
called again for hearing, complainants' counsel manifested that complainants would like to
withdraw the administrative complaint filed in the sangguniang bayan. On 29 October 2003,
complainants filed a motion[12] to withdraw the complaint lodged in the sangguniang
bayan on the ground that they wanted to prioritize the complaint filed in the Ombudsman.
Rodriguez filed a comment[13] praying that the complaint be dismissed on the ground of
forum shopping, not on the ground complainants stated. In their opposition, [14] complainants
Josef Elvin Campos
admitted they violated the rule against forum shopping and claimed they filed the complaint
in the sangguniang bayan without the assistance of counsel. In his 4 November 2003
Resolution,[15] the municipal vice-mayor dismissed the case filed in the sangguniang bayan.
In its 29 January 2004 order,[16] the Ombudsman directed both parties to file their respective
verified position papers. Rodriguez moved for reconsideration of the order citing the
pendency of his motion to dismiss. [17] In its 11 March 2004 order,[18] the Ombudsman stated
that a motion to dismiss was a prohibited pleading under Section 5 (g) Rule III of
Administrative Order No. 17. The Ombudsman reiterated its order for Rodriguez to file his
position paper.
In his position paper, Rodriguez insisted that the sangguniang bayan still continued to

exercise jurisdiction over the complaint filed against him. He claimed he had not received
any resolution or decision dismissing the complaint filed in the sangguniang bayan. In reply,
[19]
complainants maintained there was no more complaint pending in the sangguniang
bayan since the latter had granted their motion to withdraw the complaint. In a rejoinder,
[20]
Rodriguez averred that the sangguniang bayan resolution dismissing the case filed
against him was not valid because only the vice-mayor signed it.
The Ruling of the Ombudsman
In its 21 September 2004 Decision, [21] the Ombudsman found Rodriguez guilty of dishonesty
and oppression. It imposed on Rodriguez the penalty of dismissal from the service with
forfeiture of all benefits, disqualification to hold public office, and forfeiture of civil service
eligibilities. Rodriguez filed a motion for reconsideration. [22] In its 12 January 2005 Order,
[23]
the Ombudsman denied the motion for reconsideration. In its 8 March 2005 Order, [24] the
Ombudsman directed the mayor of Binalbagan, Negros Occidental to implement the penalty
of dismissal against Rodriguez.
Rodriguez filed in the Court of Appeals a petition for review with prayer for the issuance of a
temporary restraining order.
The Ruling of the Court of Appeals
In its 8 May 2006 Decision, [25] the Court of Appeals set aside for lack of jurisdiction the
Decision of the Ombudsman and directed the sangguniang bayan to proceed with the
hearing on the administrative case. The appellate court reasoned that the sangguniang
bayan had acquired primary jurisdiction over the person of Rodriguez to the exclusion of the
Ombudsman. The Court of Appeals relied on Section 4, Rule 46 of the Rules of Court, to
wit:
Sec. 4. Jurisdiction over person of respondent, how acquired. - The court shall acquire
jurisdiction over the person of the respondent by the service on him of its order or resolution
indicating its initial action on the petition or by his voluntary submission to such jurisdiction.
The appellate court noted that the sangguniang bayan served on Rodriguez a notice,

requiring the latter to file an answer, on 8 September 2003 while the Ombudsman did so
two days later or on 10 September 2003.
Petitioner Ombudsman contends that upon the filing of a complaint before a body vested
with jurisdiction, that body has taken cognizance of the complaint. Petitioner cites Black's
Law Dictionary in defining what "to take cognizance" means to wit, "to acknowledge or
exercise jurisdiction." Petitioner points out it had taken cognizance of the complaint against
Rodriguez before a similar complaint was filed in the sangguniang bayan against the same
respondent. Petitioner maintains summons or notices do not operate to vest in the
disciplining body jurisdiction over the person of the respondent in an administrative case.
Petitioner concludes that consistent with the rule on concurrent jurisdiction, the
Ombudsman's exercise of jurisdiction should be to the exclusion of the sangguniang bayan.
Private respondent Rolson Rodriguez counters that when a competent body has acquired
jurisdiction over a complaint and the person of the respondent, other bodies are excluded
from exercising jurisdiction over the same complaint. He cites Article 124 of the
Implementing Rules and Regulations of Republic Act No. 7160, [26] which provides that an
elective official may be removed from office by order of the proper court or the disciplining
authority whichever first acquires jurisdiction to the exclusion of the other. Private
respondent insists the sangguniang bayan first acquired jurisdiction over the complaint and
Josef Elvin Campos
his person. He argues jurisdiction over the person of a respondent in an administrative
complaint is acquired by the service of summons or other compulsory processes. Private
respondent stresses complainants violated the rule against forum shopping when they filed
identical complaints in two disciplining authorities exercising concurrent jurisdiction.
The Issues
The issues submitted for resolution are (1) whether complainants violated the rule against
forum shopping when they filed in the Ombudsman and the sangguniang bayan identical
complaints against Rodriguez; and (2) whether it was the sangguniang bayan or the
Ombudsman that first acquired jurisdiction.
The Court's Ruling
The petition has merit.
Paragraph 1, Section 13 of Article XI of the Constitution provides:

Sec. 13. The Ombudsman shall have 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.
Section 15 of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989,
states:
Sec. 15. Powers, Functions, and Duties. - The Ombudsman shall have the following
powers, functions, and duties:
(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 this primary jurisdiction, it may take over, at
any stage, from any investigatory agency of Government, the investigations of such cases.
The primary jurisdiction of the Ombudsman to investigate any act or omission of a public
officer or employee applies only in cases cognizable by the Sandiganbayan. In cases
cognizable by regular courts, the Ombudsman has concurrent jurisdiction with other
investigative agencies of government. [27] Republic Act No. 8249, otherwise known as An
Act Further Defining the Jurisdiction of the Sandiganbayan, limits the cases that are
cognizable by the Sandiganbayan to public officials occupying positions corresponding to
salary grade 27 and higher. The Sandiganbayan has no jurisdiction over private
respondent who, as punong barangay, is occupying a position corresponding to salary
grade 14 under Republic Act No. 6758, otherwise known as the Compensation and Position
Classification Act of 1989.[28]
Under Republic Act No. 7160, otherwise known as the Local Government Code, the
sangguniang panlungsod or sangguniang bayan has disciplinary authority over any
elective barangay official, to wit:
SEC. 61. Form and Filing of Administrative Complaints. - A verified complaint against any
erring elective official shall be prepared as follows:
x x x x
(c) A complaint against any elective barangay official shall be filed before the sangguniang

panlungsod or sangguniang bayan concerned whose decision shall be final and executory.
Clearly, the Ombudsman has concurrent jurisdiction with the sangguniang bayan over

administrative cases against elective barangay officials occupying positions below salary
grade 27, such as private respondent in this case.
The facts in the present case are analogous to those in Laxina, Sr. v. Ombudsman,[29] which
likewise involved identical administrative complaints filed in both the Ombudsman and the
sangguniang panlungsod against a punong barangay for grave misconduct. The Court held
therein that the rule against forum shopping applied only to judicial cases or proceedings,
not to administrative cases. [30] Thus, even if complainants filed in the Ombudsman and
Josef Elvin Campos
the sangguniang bayan identical complaints against private respondent, they did not violate
the rule against forum shopping because their complaint was in the nature of an
administrative case.
In administrative cases involving the concurrent jurisdiction of two or more disciplining

authorities, the body in which the complaint is filed first, and which opts to take cognizance
of the case, acquires jurisdiction to the exclusion of other tribunals exercising concurrent
jurisdiction.[31] In this case, since the complaint was filed first in the Ombudsman, and the
Ombudsman opted to assume jurisdiction over the complaint, the Ombudsman's exercise of
jurisdiction is to the exclusion of the sangguniang bayan exercising concurrent jurisdiction.
It is a hornbook rule that jurisdiction is a matter of law. Jurisdiction, once acquired, is not
lost upon the instance of the parties but continues until the case is terminated. [32] When
herein complainants first filed the complaint in the Ombudsman, jurisdiction was already
vested on the latter. Jurisdiction could no longer be transferred to the sangguniang
bayan by virtue of a subsequent complaint filed by the same complainants.
As a final note, under Section 60 of the Local Government Code, the sangguniang

bayan has no power to remove an elective barangay official. Apart from the Ombudsman,
only a proper court may do so. [33] Unlike the sangguniang bayan, the powers of the
Ombudsman are not merely recommendatory. The Ombudsman is clothed with authority to
directly remove[34] an erring public official other than members of Congress and the Judiciary
who may be removed only by impeachment.[35]
WHEREFORE, we GRANT the petition. We SET ASIDE the 8 May 2006 Decision of the

Court of Appeals in CA-G.R. SP No. 00528. We AFFIRM the 21 September 2004 Decision
of the Ombudsman (Visayas) in OMB-V-A-03-0511-H.
SO ORDERED.
Nachura, Peralta, Abad, and Mendoza, JJ., concur.
B. Sec 13, R.A. 3019

Case: Talaga, Jr. v. Sandiganbayan (G.R. No. 169888, November 11,
2008)
[G.R. NO. 169888 : November 11, 2008]
RAMON Y. TALAGA, JR., City Mayor, Lucena City, Petitioner v. HON.
SANDIGANBAYAN, 4th Division, and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Herein special civil action for certiorari under Rule 65 of the Rules of Court seeks the
nullification of the Resolution1 dated October 3, 2005 of the Sandiganbayan issued in
Criminal Case No. 27738 - where Mayor Ramon Y. Talaga, Jr. (petitioner) and the City
Councilors are prosecuted for violation of the Anti-Graft and Corrupt Practices Act: Republic
Act (R.A.) No. 3019, as amended.
The assailed Resolution ordered petitioner's preventive suspension for ninety (90) days in
accordance with Section 13 of R.A. No. 3019.
The facts of the case:
Criminal and administrative complaints were filed by Elan Recreation, Inc. (ELAN) against
petitioner with the Office of the Ombudsman. The complaints alleged that petitioner, in his
capacity as mayor of the City of Lucena, had unlawfully granted favors to a third party with
respect to the operation of bingo games in the city, to the damage and prejudice of the
complainants.2
On May 23, 2003, the Office of the Deputy Ombudsman for Luzon recommended the
dismissal of both the criminal and administrative complaints. 3 However, the Ombudsman
approved the dismissal of the administrative case but denied the dismissal of the criminal
case.
As a result, the Office of the Special Prosecutor recommended the filing of three criminal
charges for violation of R.A. No. 3019:
Josef Elvin Campos
1. Criminal Case No. 27737. For causing undue injury to complainants when petitioner as
mayor of Lucena City vetoed an ordinance granting a local franchise to the complainants to
operate bingo games in the city;
2. Criminal Case No. 27738. For giving unwarranted benefits to Jose Sy Bang by
approving an ordinance granting to Sy Bang a local franchise to operate bingo
games in the city; andcralawlibrary
3. Criminal Case No. 27739. For causing undue injury to complainants when petitioner
closed down their bingo operations temporarily. (Emphasis supplied)cralawlibrary
Petitioner filed a motion for reconsideration/reinvestigation 4 questioning the finding of the
Special Prosecutor. The Motion for Reconsideration was denied by the Office of the
Ombudsman.
On May 17, 2003, petitioner filed a motion to quash the three informations. 5 On February 9,
2004, the Sandinganbayan issued a Resolution6 quashing the Informations in Criminal
Cases No. 27737 and 27739. However, it sustained the Information in Criminal Case No.
27738. In the said Resolution, respondent referred Criminal Case No. 27738 back to the
Office of the Ombudsman and ordered the latter to conduct further preliminary investigation
to determine the possible liability of the members of the City Council which passed
Ordinance No. 1963 in said case.7
An Amended Information8 and Second Amended Information9 were filed by the prosecution
in the Sandiganbayan. The first included the members of the City Council of Lucena City
(City Councilors), as additional accused, while the Second Amended Information
(Information) alleged conspiracy between petitioner and the City Councilors. Over the
opposition10 of petitioner, the Sandiganbayan admitted both amended informations.11
On February 21, 2005, petitioner and the City Councilors filed a Motion to Quash 12 the
Information on the ground that there is no valid information on which
the Sandiganbayan has a finding of probable cause because the second amended
information's allegations do not constitute an offense, there being no violation of
Presidential Decree (P.D.) No. 771 as it has no applicability to bingo operations and P.D.
No. 771 has been superceded by P.D. No. 1869 and R.A. No 7160.
The Sandiganbayna denied13 the petition and it likewise denied petitioner's Motion for
Reconsideration.14
On June 29, 2005, petitioner and the City Councilors were arraigned in Criminal Case No.
27738 and all pleaded "not guilty".
On July 5, 2005, the prosecution filed a Motion to Suspend the Accused
Pendente Lite.15 Petitioner and his co-accused filed an Opposition 16 to the motion.
Thereafter, respondent ordered the suspension of the petitioner and his co-accused, to wit:
xxx
WHEREFORE, the prosecution's motion for suspension pendente lite is hereby GRANTED,
and accused Ramon Y. Talaga, Jr., Godofredo V. Faller, Danilo R. Zaballero, Salome S.
Dato, Simon N. Aldovino, Wilfredo F. Asilo, and Aurora C. Garcia are hereby directed to
CEASE and DESIST from further performing and/or exercising the functions, duties, and
privileges of their positions as City Mayor, and City Councilors of Lucena City, respectively,
or any other positions they may now or hereafter be holding effective immediately upon
receipt hereof and continuing for a total period of ninety (90) days. 17
Petitioner then filed the present Petition for Certiorari with an urgent application for the
issuance of a temporary restraining order and/or preliminary injunction under Rule 65 of the
Rules of Court. The Court issued a Temporary Restraining Order on November 9, 2005
enjoining public respondents from implementing the suspension of petitioner. 18
Assailing his suspension, petitioner alleges:
I
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IN ABDICATION OF ITS
CONSTITUTIONAL DUTY TO RESOLVE A JUDICIAL CONTROVERSY, IT IS
MINISTERIAL DUTY TO ISSUE A PREVENTIVE SUSPENSION ORDER AGAINST THE
PETITIONER AND THERE ARE NO IFS AND BUTS ABOUT IT.
II
ASSUMING THAT THE ISSUANCE OF THE PREVENTIVE SUSPENSION IS
MANDATORY, THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO EXCESS OR LACK OF JURISDICTION WHEN IT
ORDERED THE SUSPENSION OF THE PETITIONER AS SECTION 13 OF REPUBLIC
ACT NO. 3019, WHICH FORMS THE BASIS OF THE ORDER OF SUSPENSION, IS
UNCONSTITUTIONAL ON THE GROUND THAT IT IMPINGES UPON THE EXCLUSIVE
PREROGATIVE OF THE JUDICIARY.
Josef Elvin Campos
III
THE HONORABLE SANDIGANBAYAN COMMITED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ORDERED THE
SUSPENSION OF HEREIN PETITIONER DESPITE THE FACT THAT THERE EXISTS NO
VALID INFORMATION UNDER WHICH PETITIONER STANDS CHARGED.19
The petition is devoid of merit.
Petitioner argues that respondent committed grave abuse of discretion when in imposing
the sanction of suspension, it only relied on the "mandatory" provision of Section 13
insensate to the weight and cogency of the peculiar circumstances of the case before
it.20 Moreover, petitioner argues that the bare reliance of respondent on Section 13 without
calibrating the weight of diverse and dueling evidence pertinent to the issue of
appropriateness of ordering his suspension is a clear abdication of respondent's
constitutional duty to exercise its judicial function. 21 In addition, petitioner contends that
respondent should have looked into the "environmental circumstances" of the case and thus
it was unwarranted to apply the presumption in Bolastig v. Sandiganbayan22 that unless the
accused is suspended, he may frustrate or commit further acts of malfeasance or do both.
Petitioner asks this Court to first look into the circumstances of the case and thereafter
determine the propriety of issuing a suspension order. The Court could not be more explicit
than its ruling in Segovia v. Sandiganbayan,23 thus:
Petitioners would now have this Court strike down these resolutions because supposedly
rendered in excess of jurisdiction or with grave abuse of discretion. The Court will not do so.
In no sense may the challenged resolutions be stigmatized as so clearly capricious,
whimsical, oppressive, egregiously erroneous or wanting in logic as to call for invalidation
by the extraordinary writ of certiorari . On the contrary, in promulgating those resolutions,
the Sandiganbayan did but adhere to the clear command of the law and what it calls a
"mass of jurisprudence" emanating from this Court, sustaining its authority to decree
suspension of public officials and employees indicted before it. Indeed that the theory of
"discretionary suspension" should still be advocated at this late date, despite the
"mass of jurisprudence" relevant to the issue, is little short of amazing, bordering on
contumacious disregard of the solemn magisterial pronouncements of the Highest
Court of the land.24
xxx
While petitioners concede that this Court has "almost consistently ruled that the
preventive suspension contemplated in Section 13 of RA 3019 is mandatory in
character," they nonetheless urge the Court to consider their case an exception
because of the "peculiar circumstances" thereof. They assert that the evils sought to be
avoided by "separating a public official from the scene of his alleged misfeasance while the
same is being investigated" - - e.g., "to preclude the abuse of the prerogative of (his) office,
such as through intimidation of witnesses,"or the tampering with documentary evidence - -
will not occur in the present situation where:
1. The Project has been canceled.
2. (Their) ** official duties no longer pertain, in any manner, to the prequalification of
contractors dealing with NPC. Neither are they now involved in any bidding for or awarding
of contracts, ** it (being) emphasized (in this connection) that they were merely designated
as ad hoc members of the Committee without additional compensation for their additional
duties.
3. All the relevant documentary evidence had been either submitted to the Ombudsman or
to the Honorable Sandiganbayan.
They conclude that their preventive suspension "at this point would actually be purposeless,
as there is no more need for precautionary measures against their abuse of the
prerogatives of their office."
The arguments are not new. They have been advanced and rejected in earlier cases.
They will again be so rejected in this case.
The Court's pronouncements in Bolastig v. Sandiganbayan, are germane:
x x x The fact is that the possibility that the accused would intimidate witnesses or otherwise
hamper his prosecution is just one of the grounds for preventive suspension. The other one
is, to prevent the accused from committing further acts of malfeasance while in
office.25 (Emphasis supplied)cralawlibrary
Ineluctably, the theory of petitioner that "environmental circumstances" of the case should
first be explored has no leg to stand on.
Section 13, R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
provides:
Josef Elvin Campos
Suspension and loss of benefits. - Any public officer against whom any criminal
prosecution under a valid information under this Act or under the provisions of the
Revised Penal Code on bribery is pending in court, shall be suspended from office.
Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits
under any law, but if he is acquitted, he shall be entitled to reinstatement and to salaries
and benefits which he failed to receive during suspension, unless in the meantime
administrative proceedings have been filed against him. (Emphasis supplied)cralawlibrary
In Beroña v. Sandiganbayan,26 the Court explicitly ruled:
Section 13 is so clear and explicit that there is hardly room for any extended court
rationalization of the law. Section 13 unequivocally mandates the suspension of a public
official from office pending a criminal prosecution under R.A. 3019 or Title 7, Book II of the
Revised Penal Code or for any offense involving public funds or property or fraud on
government. This Court has repeatedly held that such preventive suspension is mandatory,
and there are no "ifs" and "buts" about it.
As early as Luciano v. Mariano,27 the Court has set out the guidelines to be followed by the
lower courts in the exercise of the power of suspension, to wit:
xxx
(c) By way of broad guidelines for the lower courts in the exercise of the power of
suspension from office of public officers charged under a valid information under the
provisions of Republic Act No. 3019 or under the provisions of the Revised Penal Code on
bribery, pursuant to section 13 of said Act, it may be briefly stated that upon the filing of
such information, the trial court should issue an order with proper notice requiring the
accused officer to show cause at a specific date of hearing why he should not be ordered
suspended from office pursuant to the cited mandatory provisions of the Act. Where either
the prosecution seasonably files a motion for an order of suspension or the accused
in turn files a motion to quash the information or challenges the validity thereof, such
show-cause order of the trial court would no longer be necessary. What is
indispensable is that the trial court duly hear the parties at a hearing held for
determining the validity of the information, and thereafter hand down its ruling,
issuing the corresponding order of suspension should it uphold the validity of the
information or withhold such suspension in the contrary case.
(d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state
that the accused should be given a fair and adequate opportunity to challenge the validity of
the criminal proceedings against him, e.g., that he has not been afforded the right of due
preliminary investigation, the act for which he stands charged do not constitute a violation of
the provisions of Republic Act No. 3019 or of bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from office under Section 13 of the Act, or
he may present a motion to quash the information on any of the grounds provided in the
Rule 117 of the Rules of Court. The mandatory suspension decreed by the act upon
determination of the pendency in court or criminal prosecution for violation of the Anti-Graft
Act or for bribery under a valid information requires at the same time that the hearing be
expeditious, and not unduly protracted such as to thwart the prompt suspension envisioned
by the Act. Hence, if the trial court, say, finds the ground alleged in the quashal motion not
to be indubitable, then it shall be called upon to issue the suspension order upon its
upholding the validity of the information and setting the same for trial on the
merits.28 (Emphasis and underscoring supplied)cralawlibrary
Stated differently, the purpose of the law in requiring a pre-suspension hearing is to
determine the validity of the information so that the court can have a basis to either suspend
the accused and proceed with the trial on the merits of the case, or withhold the suspension
and dismiss the case, or correct any part of the proceedings that impairs its validity. That
hearing is similar to a challenge to the validity of the information by way of a motion to
quash.29 In this case, respondent had determined the validity of the Information when
petitioner filed his Motion to Quash. The hearings or proceedings held thereon, in effect,
constituted a pre-suspension hearing. Respondent has followed the dictates of the law.
This brings the Court to petitioner's third assigned error that there is no valid Information
under which petitioner stands charged.
In effect, petitioner is stating once again that the allegations in the Information do not
constitute an offense. Petitioner is holding on to a thin straw in claiming that the Information
is fatally defective since it failed to allege that petitioner by enacting and approving
Ordinance No. 1963 had "caused injury to any party, whether the government or private
party", an essential element in the crime charged.
The Information reads:
Josef Elvin Campos
That on or about June 5, 2000, or sometime prior or subsequent thereto, in Lucena City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused
RAMON TALAGA, JR., being the City Mayor of Lucena, Quezon and GODOFREDO V.
FALLER, VICTOR U. PAULO, DANILO R. ZABALLERO, SALOME S. DATO, SIMON N.
ALDOVINO, WILFREDO F. ASILO, PHILIP M. CASTILLO, AURORA C. GARCIA,
ROMANO FRANCO C. TALAGA, being members of the City Council of Lucena City, while
in the performance of their official and/or administrative functions, committing the offense in
relation to their office, did then and there willfully, unlawfully, and criminally, with evident
bad faith and/or manifest partiality, conspiring, confederating and mutually helping such
other, give unwarranted benefit to Jose Sy Bang of Lucena City, by then and there, in
conspiracy with each other, by enacting and approving Ordinance No. 1963, series of
2000 dated June 5, 2000 granting unto the said Jose Sy Bang a local franchise to
operate a bingo business in Lucena City in violation of Presidential decree No. 771.
(Emphasis supplied)cralawlibrary
Section 3(e) of R.A. No. 3019, under which petitioner is charged, provides:
Section 3. Corrupt practices of public officers. - In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers and
employees charged with the grant of licenses or permits or other concessions. (Emphasis
and underscoring supplied)cralawlibrary
Contrary to the argument of petitioner, the law does not require that the information must
allege that the acts in question "caused injury to any party, whether the government or
private party." The presence of the word "or" clearly shows that there are two acts which
can be prosecuted under Section 3: First, causing any undue injury to any party, including
the government, and, Second, giving any private party any unwarranted benefits,
advantages or preference. Moreover, in Quibal v. Sandiganbayan,30 the Court ruled that
violation of Section 3 (e) of R.A. No. 3019 requires proof of the following facts:
xxx
1. His action caused undue injury to the Government or any private party, or gave any
party any unwarranted benefit, advantage or preference to such parties. 31
Section 9, Rule 110, Rules of Court provides the guideline for the determination of the
validity or sufficiency of allegations in an information, to wit:
SECTION 9. Cause of the Accusation. - The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances must be stated
in ordinary and concise language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of common understanding to know
what offense is being charged as well as its qualifying and aggravating circumstances
and for the court to pronounce judgment. (Emphasis supplied)cralawlibrary
The test is whether the crime is described in intelligible terms with such particularity as to
appraise the accused, with reasonable certainty, of the offense charged. The raison
d'etre of the rule is to enable the accused to suitably prepare his defense. 32
Based on the foregoing test, the Information sufficiently apprises petitioner of the charges
against him. The Information charged the petitioner of evident bad faith and manifest
partiality when as Mayor of Lucena City, petitioner, in conspiracy with the City Council, gave
unwarranted benefits to Jose Sy Bang. Moreover, it states the specific act which constituted
the giving of unwarranted benefits, namely, granting unto the said Jose Sy Bang a local
franchise to operate a bingo business in Lucena City in violation of existing laws. These
allegations are clear enough for a layman to understand.
Finally, petitioner's second assigned error deserves scant consideration. The validity of
Section 13, R.A. No. 3019 may no longer be put at issue, the same having been repeatedly
upheld by this Court.33 Basic is the rule that every law has in its favor the presumption of
constitutionality, and to justify its nullification, there must be a clear and unequivocal breach
of the Constitution, and not one that is doubtful, speculative or argumentative. 34
The Anti-Graft and Corrupt Practices Act implicitly recognizes that the power of preventive
suspension lies in the court in which the criminal charge is filed; once a case is filed in court,
all other acts connected with the discharge of court functions - including preventive
suspension - should be acknowledged as within the competence of the court that has taken
cognizance thereof, no violation of the doctrine of separation of powers being perceivable in
Josef Elvin Campos
that acknowledgement.35 As earlier mentioned, the court must first determine the validity of
the information through a pre-suspension hearing. But once a proper determination of the
validity of the information has been made, it becomes the ministerial duty of the court to
forthwith issue the order of preventive suspension. 36
WHEREFORE, the instant petition is DISMISSED, there being no showing that
the Sandiganbayan gravely abused its discretion in issuing its Resolution of October 3,
2005, preventively suspending the petitioner for ninety (90) days. The Temporary
Restraining Order dated November 9, 2005 is lifted.
SO ORDERED.
C. Secs. 51 and 52, Subtitle A, Title I, Book V of Executive Order No.

292, or the Administrative Code of 1987
SECTION 51. Preventive Suspension.—The proper disciplining
authority may preventively suspend any subordinate officer or
employee under his authority pending an investigation, if the charge
against such officer or employee involves dishonesty, oppression or
grave misconduct, or neglect in the performance of duty, or if there are
reasons to believe that the respondent is guilty of charges which would
warrant his removal from the service.
SECTION 52. Lifting of Preventive Suspension Pending Administrative
Investigation.—When the administrative case against the officer or
employee under preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days after the date
of suspension of the respondent who is not a presidential appointee,
the respondent shall be automatically reinstated in the service:
Provided, That when the delay in the disposition of the case is due to
the fault, negligence or petition of the respondent, the period of delay
shall not be counted in computing the period of suspension herein
provided.
(f) Doctrine of condonation

Aguinaldo v. Santos (G.R. No. 94115, 21 August 1992)
G.R. No. 94115 August 21, 1992
RODOLFO E. AGUINALDO, petitioner,
vs.
HON. LUIS SANTOS, as Secretary of the Department of Local Government, and
MELVIN VARGAS, as Acting Governor of Cagayan, respondents.
Victor I. Padilla for petitioner.
Doroteo B. Laguna and Manuel T. Molina for private respondent.
NOCON, J.:
In this petition for certiorari and prohibition with preliminary mandatory injunction and/or
restraining order, petitioner Rodolfo E. Aguinaldo assails the decision of respondent
Secretary of Local Government dated March 19,1990 in Adm. Case No. P-10437-89
dismissing him as Governor of Cagayan on the ground that the power of the Secretary of
Local Government to dismiss local government official under Section 14, Article I, Chapter 3
and Sections 60 to 67, Chapter 4 of Batas Pambansa Blg. 337, otherwise known as the
Local Government Code, was repealed by the effectivity of the 1987 Constitution.
The pertinent facts are as follows: Petitioner was the duly elected Governor of the province
of Cagayan, having been elected to said position during the local elections held on January
17, 1988, to serve a term of four (4) years therefrom. He took his oath sometimes around
March 1988.
Shortly after December 1989 coup d'etat was crushed, respondent Secretary of Local
Government sent a telegram and a letter, both dated December 4, 1989, to petitioner
requiring him to show cause why should not be suspended or remove from office for
disloyalty to the Republic, within forty-eight (48) hours from receipt thereof.
On December 7, 1989, a sworn complaint for disloyalty to the Republic and culpable
violation of the Constitution was filed by Veronico Agatep, Manuel Mamba and Orlino
Agatep, respectively the mayors of the municipalities of Gattaran, Tuao and Lasam, all in
Cagayan, against petitioner for acts the latter committed during the coup. Petitioner was
required to file a verified answer to the complaint.
Josef Elvin Campos
On January 5, 1990, the Department of Local Government received a letter from petitioner
dated December 29, 1989 in reply to respondent Secretary's December 4, 1989 letter
requiring him to explain why should not be suspended or removed from office for disloyalty.
In his letter, petitioner denied being privy to the planning of the coup or actively participating
in its execution, though he admitted that he was sympathetic to the cause of the rebel
soldiers. 1
Respondent Secretary considered petitioner's reply letter as his answer to the complaint of
Mayor Veronico Agatep and others. 2 On the basis thereof, respondent Secretary
suspended petitioner from office for sixty (60) days from notice, pending the outcome of the
formal investigation into the charges against him.
During the hearing conducted on the charges against petitioner, complainants presented
testimonial and documentary evidence to prove the charges. Petitioner neither presented
evidence nor even cross-examined the complainant's witnesses, choosing instead to move
that respondent Secretary inhibit himself from deciding the case, which motion was denied.
Thereafter, respondent Secretary rendered the questioned decision finding petitioner guilty
as charged and ordering his removal from office. Installed as Governor of Cagayan in the
process was respondent Melvin Vargas, who was then the Vice-Governor of Cagayan.
Petitioner relies on three grounds for the allowance of the petition, namely: (1) that the
power of respondent Secretary to suspend or remove local government official under
Section 60, Chapter IV of B.P. Blg. 337 was repealed by the 1987 Constitution; (2) that
since respondent Secretary no longer has power to suspend or remove petitioner, the
former could not appoint respondent Melvin Vargas as Governor of Cagayan; and (3) the
alleged act of disloyalty committed by petitioner should be proved by proof beyond
reasonable doubt, and not be a mere preponderance of evidence, because it is an act
punishable as rebellion under the Revised Penal Code.
While this case was pending before this Court, petitioner filed his certificate of candidacy for
the position of Governor of Cagayan for the May 11, 1992 elections. Three separate
petitions for his disqualification were then filed against him, all based on the ground that he
had been removed from office by virtue of the March 19, 1990 resolution of respondent
Secretary. The commission on Elections granted the petitions by way of a resolution dated
May 9, 1992. On the same day, acting upon a "Motion to Clarify" filed by petitioner, the
Commission ruled that inasmuch as the resolutions of the Commission becomes final and
executory only after five (5) days from promulgation, petitioner may still be voted upon as a
candidate for governor pending the final outcome of the disqualification cases with his
Court.
Consequently, on May 13, 1992, petitioner filed a petition for certiorari with this Court, G.R.
Nos. 105128-30, entitled Rodolfo E. Aguinaldo v. Commission on Elections, et al., seeking
to nullify the resolution of the Commission ordering his disqualification. The Court, in a
resolution dated May 14, 1992, issued a temporary restraining order against the
Commission to cease and desist from enforcing its May 9, 1992 resolution pending the
outcome of the disqualification case, thereby allowing the canvassing of the votes and
returns in Cagayan to proceed. However, the Commission was ordered not to proclaim a
winner until this Court has decided the case.
On June 9, 1992, a resolution was issued in the aforementioned case granting petition and
annulling the May 9, 1992 resolution of the Commission on the ground that the decision of
respondent Secretary has not yet attained finality and is still pending review with this Court.
As petitioner won by a landslide margin in the elections, the resolution paved the way for his
eventual proclamation as Governor of Cagayan.
Under the environmental circumstances of the case, We find the petition meritorious.
Petitioner's re-election to the position of Governor of Cagayan has rendered the
administration case pending before Us moot and academic. It appears that after the
canvassing of votes, petitioner garnered the most number of votes among the candidates
for governor of Cagayan province. As held by this Court in Aguinaldo v. Comelec et al.,
supra,:
. . . [T]he certified true xerox copy of the "CERTITICATE OF VOTES OF
CANDIDATES", attached to the "VERY URGENT MOTION FOR THE
MODIFICATION OF THE RESOLUTION DATED MAY 14, 1992["] filed by
petitioner shows that he received 170,382 votes while the other candidates
for the same position received the following total number of votes: (1) Patricio
T. Antonio — 54,412, (2) Paquito F. Castillo — 2,198; and (3) Florencio L.
Vargas — 48,129.
x x x x x x x x x
Josef Elvin Campos
Considering the fact narrated, the expiration of petitioner's term
of office during which the acts charged were allegedly
committed, and his subsequent reelection, the petitioner must
be dismissed for the reason that the issue has become
academic. In Pascual v. Provincial Board of Nueva Ecija, L-
11959, October 31, 1959, this Court has ruled:
The weight of authority, however, seems to
incline to the ruled denying the right to remove
from office because of misconduct during a prior
term to which we fully subscribe.
Offenses committed, or acts done, during a previous term are generally held
not to furnish cause for removal and this is especially true were the
Constitution provides that the penalty in proceeding for removal shall not
extend beyond the removal from office, and disqualification from holding
office for a term for which the officer was elected or appointed. (6 C.J.S. p.
248, citing Rice v. State, 161 S.W. 2nd 4011; Montgomery v. Newell, 40 S.W.
23rd 418; People ex rel Bashaw v. Thompson, 130 P. 2nd 237; Board of
Com'rs Kingfisher County v. Shutler, 281 P. 222; State v. Blake, 280 P. 388;
In re Fedula, 147 A 67; State v. Wald, 43 S.W. 217)
The underlying theory is that each term is separate from other
terms, and that the reelection to office operates as a
condonation of the officer's misconduct to the extent of cutting
off the right to remove him therefor. (43 Am. Jur. p. 45, citing
Atty. Gen. v. Kasty, 184 Ala. 121, 63 Sec. 599, 50 L.R.A. [NS]
553). As held in Comant v. Bregan [ 1887] 6 N.Y.S.R. 332,
cited in 17 A.L.R. 63 Sec. 559, 50 [NE] 553.
The Court should ever remove a public officer for acts done prior to his
present term of office. To do otherwise would be to deprive the people of their
right to elect their officers. When a people have elected a man to office, it
must be assumed that they did this with knowledge of his life and character,
and that they disregarded or forgave his fault or misconduct, if he had been
guilty of any. It is not for the court, by reason of such fault or misconduct, to
practically overrule the will of the people. (Lizares v. Hechanova, et al., 17
SCRA 58, 59-60 [1966]) (See also Oliveros v. Villaluz, 57 SCRA 163 [1974]) 3
Clear then, the rule is that a public official can not be removed for administrative misconduct
committed during a prior term, since his re-election to office operates as a condonation of
the officer's previous misconduct to the extent of cutting off the right to remove him therefor.
The foregoing rule, however, finds no application to criminal cases pending against
petitioner for acts he may have committed during the failed coup.
The other grounds raised by petitioner deserve scant consideration. Petitioner contends that
the power of respondent Secretary to suspend or remove local government officials as alter
ego of the President, and as embodied in B.P. Blg. 337 has been repealed by the 1987
Constitution and which is now vested in the courts.
We do not agree. The power of respondent Secretary to remove local government officials
is anchored on both the Constitution and a statutory grant from the legislative branch. The
constitutional basis is provided by Articles VII (17) and X (4) of the 1987 Constitution which
vest in the President the power of control over all executive departments, bureaus and
offices and the power of general supervision over local governments, and by the doctrine
that the acts of the department head are presumptively the acts of the President unless
expressly rejected by him. 4 The statutory grant found in B.P. Blg. 337 itself has
constitutional roots, having been enacted by the then Batasan Pambansa pursuant to
Article XI of the 1973 Constitution, Section 2 of which specifically provided as follows —
Sec. 2. The National Assembly shall enact a local government code which
may not thereafter be amended except by a majority vote of all its Members,
defining a more responsive and accountable local government structure with
an effective system of recall, allocating among the different local government
units their powers, responsibilities, and resources, and providing for the
qualifications, election and removal, term, salaries, power, functions, and
duties of local government officials, and all other matters relating to the
organization and operation of the local units. However, any change in the
existing form of local government shall not take effect until ratified by a
majority of the votes cast in the plebiscite called for the purpose. 5
A similar provision is found in Section 3, Article X of the 1987 Constitution, which reads:
Josef Elvin Campos
Sec. 3. The Congress shall enact a local government code which shall
provided for a more responsive and accountable local government structure
instituted through a system of decentralization with effective mechanisms of
recall, initiative, and referendum, allocate among the different local
government units their powers, responsibilities, and resources, and provide
for the qualifications, election, appointment, and removal, term and salaries,
powers and functions and duties of local officials, and all other matters
relating to the organization and operation of the local units. 6
Inasmuch as the power and authority of the legislature to enact a local government code,
which provides for the manner of removal of local government officials, is found in the 1973
Constitution as well as in the 1987 Constitution, then it can not be said that BP Blg. 337 was
repealed by the effective of the present Constitution.
Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., 7 this court had the occasion to state
that B.P. Blg. 337 remained in force despite the effectivity of the present Constitution, until
such time as the proposed Local Government Code of 1991 is approved.
The power of respondent Secretary of the Department of Local Government to remove local
elective government officials is found in Secs. 60 and 61 of B.P. Blg. 337. 8
As to petitioner's argument of the want of authority of respondent Secretary to appoint
respondent Melvin Vargas as Governor of Cagayan, We need but point to Section 48 (1) of
B.P. Blg 337 to show the fallacy of the same, to writ —
In case a permanent vacancy arises when a governor . . . refuses to assume
office, fails to quality, dies or is removed from office, voluntarily resigns, or is
otherwise permanently incapacitated to discharge the functions of his office,
the vice-governor . . . shall assume the office for the unexpired term of the
former. 9
Equally without merit is petitioner's claim that before he could be suspended or removed
from office, proof beyond reasonable doubt is required inasmuch as he is charged with a
penal offense of disloyalty to the Republic which is defined and penalized under Article 137
of the Revised Penal Code. Petitioner is not being prosecuted criminally under the
provisions of the Revised Penal Code, but administratively with the end in view of removing
petitioner as the duly elected Governor of Cagayan Province for acts of disloyalty to the
Republic where the quantum of proof required is only substantial evidence. 10
WHEREFORE, petitioner is hereby GRANTED and the decision of public respondent
Secretary of Local Government dated March 19, 1990 in Adm. Case No. P-10437-89,
dismissing petitioner as Governor of Cagayan, is hereby REVERSED.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea,
Regalado, Davide, Jr., Romero and Bellosillo, JJ., concur.
Melo, J., took no part.
Salumbines, Jr. v. Office of the Ombudsman (G.R. No. 180917, 23 April

2010)
G.R. No. 180917 April 23, 2010
ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners,
vs.
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER
DIZON, SALVADOR ADUL, and AGNES FABIAN, Respondents,
DECISION
CARPIO MORALES, J.:
Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araña (Glenda) challenge the
October 11, 2007 Decision and the December 13, 2007 Resolution of the Court of
Appeals1 in CA-G.R. SP No. 96889 affirming the Office of the Ombudsman's decision
finding them guilty of Simple Neglect of Duty.
Salumbides and Glenda were appointed in July 2001 as Municipal Legal
Officer/Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon.
Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent need to
construct a two-classroom building with fence (the projects) for the Tagkawayan Municipal
High School2 (TMHS) since the public school in the poblacion area would no longer admit
high school freshmen starting school year 2002-2003. On how to solve the classroom
shortage, the mayor consulted Salumbides who suggested that the construction of the two-
classroom building be charged to the account of the Maintenance and Other Operating
Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and implemented "by
Josef Elvin Campos
administration," as had been done in a previous classroom building project of the former
mayor.
Upon consultation, Glenda advised Salumbides in December 2001, that there were no more
available funds that could be taken from the MOOE/RMF, but the savings of the municipal
government were adequate to fund the projects. She added, however, that the approval by
the Sangguniang Bayan of a proposed supplemental budget must be secured.
The members of the Sangguniang Bayan having already gone on recess for the Christmas
holidays, Glenda and Salumbides advised the mayor to source the funds from the
₱1,000,000 MOOE/RMF allocation in the approved Municipal Annual Budget for 2002. 3
The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to
proceed with the construction of the projects based on the program of work and bill of
materials he (Aquino) prepared with a total cost estimate of ₱222,000.
Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the
mayor included the projects in the list of local government projects scheduled for bidding on
January 25, 2002 which, together with the January 31, 2002 public bidding, failed.
The mayor was to admit later his expectation or assumption of risk on reimbursement:
x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were
at the time on-going (although it was also my thinking then that no bidder would possibly bid
for these 2 projects as these were cost-estimated very low-P150,000 for the 2-room school
building P72,000 for the fencing) he (bidder) would be reasonable enough to reimburse
what I had so far spen[t] for the project. I said "I" because up to the time of the failed 2
biddings I have shouldered the "vale" of the laborers and I requisitioned some materials on
credit on my own personal account, and not a single centavo was at the time disbursed by
our municipal treasury until all requirements for negotiated purchase of the materials for the
project had been accomplished. As a matter of fact, payments for the expenses on these 2
projects have been made only starting 19 March 2002. x x x4 (underscoring supplied)
The construction of the projects commenced without any approved appropriation and ahead
of the public bidding. Salumbides was of the opinion that the projects were regular and
legal, based on an earlier project that was "implemented in the same manner, using the
same source of fund and for the same reason of urgency" which was allowed "because the
building was considered merely temporary as the TMHS is set to be transferred to an 8-
hectare lot which the municipal government is presently negotiating to buy." 5
Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of "model
guidelines" in the implementation of infrastructure projects to be executed "by
administration," while Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify the
projects and to authorize the mayor to enter into a negotiated procurement. Both actions did
not merit the approval of the Sangguniang Bayan.
On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon,
Salvador Adul and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan,
filed with the Office of the Ombudsman a complaint 6 against Salumbides and Glenda
(hereafter petitioners), the mayor, Coleta, Jason and Aquino.
The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged
petitioners et al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct
Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit
(COA) Rules and the Local Government Code.
By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place
petitioners et al. under preventive suspension pending investigation. By Order dated
February 1, 2005, approved on April 11, 2005, it denied the motion for reconsideration
but dropped the mayor and Coleta, both elective officials, as respondents in the
administrative case, the 2004 elections having mooted the case. The parties were
thereupon directed to submit their respective verified position papers to which petitioners,
Jason and Aquino complied by submitting a consolidated position paper on May 19, 2005.
Meanwhile, in response to the subpoena duces tecum issued by the Office of the
Ombudsman on February 18, 2005 requiring the regional officer of the COA to submit the
post-audit report on the projects, Celerino Alviar, COA State Auditor II claimed by Affidavit
of May 23, 2005 that the required documents were among those razed by fire on April 14,
2004 that hit the Office of the Municipal Accountant where they were temporarily stored due
to lack of space at the Provincial Auditor's Office.1avvphi1
On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005
Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect
of Duty, for which they were meted the penalty of suspension from office for a maximum
period of six months with a stern warning against a similar repetition. It also approved on
November 2, 2006 the March 27, 2006 Order 7 denying the motion for reconsideration.
Josef Elvin Campos
Their recourse to the appellate court having failed, petitioners come before this Court via
For non-compliance with the rule on certification against forum shopping, the petition merits
outright dismissal. The verification portion of the petition does not carry a certification
against forum shopping.8
The Court has distinguished the effects of non-compliance with the requirement of
verification and that of certification against forum shopping. A defective verification shall be
treated as an unsigned pleading and thus produces no legal effect, subject to the discretion
of the court to allow the deficiency to be remedied, while the failure to certify against forum
shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is
not curable by amendment of the initiatory pleading.9
Petitioners' disregard of the rules was not the first. Their motion for extension of time to file
petition was previously denied by Resolution of January 15, 2008 10 for non-compliance with
the required showing of competent proof of identity in the Affidavit of Service. The Court, by
Resolution of March 4, 2008, 11 later granted their motion for reconsideration with motion to
admit appeal (Motion with Appeal) that was filed on February 18, 2008 or the last day of
filing within the extended period.
Moreover, in their Manifestation/Motion 12 filed a day later, petitioners prayed only for the
admission of nine additional copies of the Motion with Appeal "due to honest inadvertence"
in earlier filing an insufficient number of copies. Petitioners were less than candid when they
surreptitiously submitted a Motion with Appeal which is different from the first set they had
submitted. The second set of Appeal includes specific Assignment of Errors 13 and already
contains a certification against forum shopping 14 embedded in the Verification. The two
different Verifications were notarized by the same notary public and bear the same date and
document number.15 The rectified verification with certification, however, was filed beyond
the reglementary period.
Its lapses aside, the petition just the same merits denial.
Petitioners urge this Court to expand the settled doctrine of condonation 16 to cover
coterminous appointive officials who were administratively charged along with the reelected
official/appointing authority with infractions allegedly committed during their preceding term.
The Court rejects petitioners' thesis.
More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva
Ecija17 issued the landmark ruling that prohibits the disciplining of an elective official for a
wrongful act committed during his immediately preceding term of office. The Court
explained that "[t]he underlying theory is that each term is separate from other terms, and
that the reelection to office operates as a condonation of the officer's previous
misconduct to the extent of cutting off the right to remove him therefor." 18
The Court should never remove a public officer for acts done prior to his present term of
office. To do otherwise would be to deprive the people of their right to elect their
officers. When the people elect[e]d a man to office, it must be assumed that they did this
with knowledge of his life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or
misconduct[,] to practically overrule the will of the people. 19 (underscoring supplied)
Lizares v. Hechanova, et al.20 replicated the doctrine. The Court dismissed the petition in
that case for being moot, the therein petitioner "having been duly reelected, is no longer
amenable to administrative sanctions."21
Ingco v. Sanchez, et al.22 clarified that the condonation doctrine does not apply to a criminal
case.23 Luciano v. The Provincial Governor, et al., 24 Olivarez v. Judge
25 26
Villaluz, and Aguinaldo v. Santos echoed the qualified rule that reelection of a public
official does not bar prosecution for crimes committed by him prior thereto.
Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence
including two cases involving a Senator and a Member of the House of Representatives. 27
Salalima v. Guingona, Jr.28 and Mayor Garcia v. Hon. Mojica29 reinforced the doctrine. The
condonation rule was applied even if the administrative complaint was not filed before the
reelection of the public official, and even if the alleged misconduct occurred four days
before the elections, respectively. Salalima did not distinguish as to the date of filing of the
administrative complaint, as long as the alleged misconduct was committed during the prior
term, the precise timing or period of which Garcia did not further distinguish, as long as the
wrongdoing that gave rise to the public official's culpability was committed prior to the date
of reelection.
Petitioners' theory is not novel.
A parallel question was involved in Civil Service Commission v. Sojor30 where the Court
found no basis to broaden the scope of the doctrine of condonation:
Josef Elvin Campos
Lastly, We do not agree with respondent's contention that his appointment to the position of
president of NORSU, despite the pending administrative cases against him, served as a
condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid
down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present
circumstances. Respondents in the mentioned cases are elective officials, unlike
respondent here who is an appointed official. Indeed, election expresses the sovereign will
of the people. Under the principle of vox populi est suprema lex, the re-election of a public
official may, indeed, supersede a pending administrative case. The same cannot be
said of a re-appointment to a non-career position. There is no sovereign will of the
people to speak of when the BOR re-appointed respondent Sojor to the post of university
president.31 (emphasis and underscoring supplied)lawph!l
Contrary to petitioners' asseveration, the non-application of the condonation doctrine to
appointive officials does not violate the right to equal protection of the law.
In the recent case of Quinto v. Commission on Elections, 32 the Court applied the four-fold
test in an equal protection challenge33 against the resign-to-run provision, wherein it
discussed the material and substantive distinctions between elective and appointive officials
that could well apply to the doctrine of condonation:
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality. It is not intended
to prohibit legislation which is limited either in the object to which it is directed or by territory
within which it is to operate. It does not demand absolute equality among residents; it
merely requires that all persons shall be treated alike, under like circumstances and
conditions both as to privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and reasonable grounds
exist for making a distinction between those who fall within such class and those who do
not.
Substantial distinctions clearly exist between elective officials and appointive
officials. The former occupy their office by virtue of the mandate of the electorate. They are
elected to an office for a definite term and may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some appointive officials hold their office in
a permanent capacity and are entitled to security of tenure while others serve at the
pleasure of the appointing authority.
xxxx
An election is the embodiment of the popular will, perhaps the purest expression of the
sovereign power of the people. It involves the choice or selection of candidates to public
office by popular vote. Considering that elected officials are put in office by their
constituents for a definite term, x x x complete deference is accorded to the will of the
electorate that they be served by such officials until the end of the term for which they were
elected. In contrast, there is no such expectation insofar as appointed officials are
concerned. (emphasis and underscoring supplied)
The electorate's condonation of the previous administrative infractions of the reelected
official cannot be extended to that of the reappointed coterminous employees, the
underlying basis of the rule being to uphold the will of the people expressed through the
ballot. In other words, there is neither subversion of the sovereign will nor
disenfranchisement of the electorate to speak of, in the case of reappointed coterminous
employees.
It is the will of the populace, not the whim of one person who happens to be the appointing
authority, that could extinguish an administrative liability. Since petitioners hold appointive
positions, they cannot claim the mandate of the electorate. The people cannot be charged
with the presumption of full knowledge of the life and character of each and every probable
appointee of the elective official ahead of the latter's actual reelection.
Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous
precedent as it would, as respondents posit, provide civil servants, particularly local
government employees, with blanket immunity from administrative liability that would spawn
and breed abuse in the bureaucracy.
Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and
re-assess the factual findings. This the Court cannot do, for being improper and immaterial.
Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is
not a trier of facts.34 As a rule, the Court is not to review evidence on record and assess the
probative weight thereof. In the present case, the appellate court affirmed the factual
Josef Elvin Campos
findings of the Office of the Ombudsman, which rendered the factual questions beyond the
province of the Court.
Moreover, as correctly observed by respondents, the lack of conspiracy cannot be
appreciated in favor of petitioners who were found guilty of simple neglect of duty, for if they
conspired to act negligently, their infraction becomes intentional. 35 There can hardly be
conspiracy to commit negligence.36
Simple neglect of duty is defined as the failure to give proper attention to a task expected
from an employee resulting from either carelessness or indifference. 37 In the present case,
petitioners fell short of the reasonable diligence required of them, for failing to exercise due
care and prudence in ascertaining the legal requirements and fiscal soundness of the
projects before stamping their imprimatur and giving their advice to their superior.
The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides
"failed to uphold the law and provide a sound legal assistance and support to the mayor in
carrying out the delivery of basic services and provisions of adequate facilities when he
advised [the mayor] to proceed with the construction of the subject projects without prior
competitive bidding."38 As pointed out by the Office of the Solicitor General, to absolve
Salumbides is tantamount to allowing with impunity the giving of erroneous or illegal advice,
when by law he is precisely tasked to advise the mayor on "matters related to upholding the
rule of law."39 Indeed, a legal officer who renders a legal opinion on a course of action
without any legal basis becomes no different from a lay person who may approve the same
because it appears justified.
As regards petitioner Glenda, the appellate court held that the improper use of government
funds upon the direction of the mayor and prior advice by the municipal legal officer did not
relieve her of liability for willingly cooperating rather than registering her written
objection40 as municipal budget officer.
Aside from the lack of competitive bidding, the appellate court, pointing to the improper
itemization of the expense, held that the funding for the projects should have been taken
from the "capital outlays" that refer to the appropriations for the purchase of goods and
services, the benefits of which extend beyond the fiscal year and which add to the assets of
the local government unit. It added that current operating expenditures like MOOE/RMF
refer to appropriations for the purchase of goods and services for the conduct of normal
local government operations within the fiscal year. 41
In Office of the Ombudsman v. Tongson,42 the Court reminded the therein respondents, who
were guilty of simple neglect of duty, that government funds must be disbursed only upon
compliance with the requirements provided by law and pertinent rules.
Simple neglect of duty is classified as a less grave offense punishable by suspension
without pay for one month and one day to six months. Finding no alleged or established
circumstance to warrant the imposition of the maximum penalty of six months, the Court
finds the imposition of suspension without pay for three months justified.
When a public officer takes an oath of office, he or she binds himself or herself to faithfully
perform the duties of the office and use reasonable skill and diligence, and to act primarily
for the benefit of the public. Thus, in the discharge of duties, a public officer is to use that
prudence, caution, and attention which careful persons use in the management of their
affairs.43
Public service requires integrity and discipline. For this reason, public servants must exhibit
at all times the highest sense of honesty and dedication to duty. By the very nature of their
duties and responsibilities, public officers and employees must faithfully adhere to hold
sacred and render inviolate the constitutional principle that a public office is a public trust;
and must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency.44
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP
No. 96889 are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr.
and Glenda Araña, are suspended from office for three (3) months without pay.
SO ORDERED.
CONCHITA CARPIO MORALES

Associate Justice
Ombudsman Carpio-Morales v. CA and Binay (G.R. Nos. 217126-27, 10

November 2015)
[ G.R. Nos. 217126-27, November 10, 2015 ]
Josef Elvin Campos
CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE OMBUDSMAN,
PETITIONER, VS. COURT OF APPEALS (SIXTH DIVISION) AND JEJOMAR ERWIN S.
BINAY, JR., RESPONDENTS.
DECISION
PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and immemorially
acknowledged so to be[.]"[1]
The Case
Before the Court is a petition for certiorari and prohibition[2] filed on March 25, 2015 by

petitioner Conchita Carpio Morales, in her capacity as the Ombudsman (Ombudsman),
through the Office of the Solicitor General (OSG), assailing: (a) the Resolution [3] dated
March 16, 2015 of public respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453,
which granted private respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the
issuance of a temporary restraining order (TRO) against the implementation of the Joint
Order[4] dated March 10, 20,15 of the Ombudsman in OMB-C-A-15-0058 to 0063
(preventive suspension order) preventively suspending him and several other public officers
and employees of the City Government of Makati, for six (6) months without pay; and (b) the
Resolution[5] dated March 20, 2015 of the CA, ordering the Ombudsman to comment on
Binay, Jr.'s petition for contempt [6] in CA-G.R. SP No. 139504.
Pursuant to the Resolution[7] dated April 6, 2015, the CA issued a writ of preliminary

injunction[8] (WPI) in CA-G.R. SP No. 139453 which further enjoined the implementation of
the preventive suspension order, prompting the Ombudsman to file a supplemental
petition[9] on April 13, 2015.
The Facts
On July 22, 2014, a complaint/affidavit [10] was filed by Atty. Renato L. Bondal and Nicolas
"Ching" Enciso VI before the Office of the Ombudsman against Binay, Jr. and other public
officers and employees of the City Government of Makati (Binay, Jr., et al), accusing them
of Plunder[11] and violation of Republic Act No. (RA) 3019, [12] otherwise known as "The Anti-
Graft and Corrupt Practices Act," in connection with the five (5) phases of the procurement
and construction of the Makati City Hall Parking Building (Makati Parking Building). [13]
On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators [14] to

conduct a fact-finding investigation, submit an investigation report, and file the necessary
complaint, if warranted (1st Special Panel). [15] Pursuant to the Ombudsman's directive, on
March 5, 2015, the 1st Special Panel filed a complaint [16] (OMB Complaint) against Binay,
Jr., et al, charging them with six (6) administrative cases [17] for Grave Misconduct, Serious
Dishonesty, and Conduct Prejudicial to the Best Interest of the Service, and six (6) criminal
cases[18] for violation of Section 3 (e) of RA 3019, Malversation of Public Funds, and
Falsification of Public Documents (OMB Cases). [19]
As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities
attending the following procurement and construction phases of the Makati Parking Building
project, committed during his previous and present terms as City Mayor of Makati:
Binay, Jr.'s First Term (2010 to 2013) [20]
(a) On September 21, 2010, Binay, Jr. issued the Notice of Award[21] for Phase III of the
Makati Parking Building project to Hilmarc's Construction Corporation (Hilmarc's), and
consequently, executed the corresponding contract [22] on September 28, 2010,[23] without
the required publication and the lack of architectural design, [24] and approved the release of
funds therefor in the following amounts as follows: (1) P130,518,394.80 on December 15,
2010;[25] (2) P134,470,659.64 on January 19, 2011; [26] (3) P92,775,202.27 on February 25,
2011;[27] (4) P57,148,625.51 on March 28, 2011;[28] (5) P40,908,750.61 on May 3, 2011;
[29]
and (6) P106,672,761.90 on July 7, 2011; [30]
(b) On August 11, 2011, Binay, Jr. issued the Notice of Award [31] for Phase IV of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding
contract[32] on August 18, 2011,[33] without the required publication and the lack of
architectural design,[34] and approved the release of funds therefor in the following amounts
as follows: (1) P182,325,538.97 on October 4, 2O11; [35] (2) P173,132,606.91 on October
Josef Elvin Campos
28,2011;[36] (3) P80,408,735.20 on December 12, 2011;[37] (4) P62,878,291.81 on February
10, 2012;[38] and (5) P59,639,167.90 on October 1, 2012;[39]
(c) On September 6, 2012, Binay, Jr. issued the Notice of Award [40] for Phase V of the
Makati Parking Building project to Hilmarc's, and consequently, executed the corresponding
contract[41] on September 13, 2012,[42] without the required publication and the lack of
architectural design,[43] and approved the release of the funds therefor in the amounts of
P32,398,220.05[44] and P30,582,629.30[45] on December 20, 2012; and
Binay, Jr.'s Second Term (2013 to 2016)[46]
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the
remaining balance of the September 13, 2012 contract with Hilmarc's for Phase V of the
Makati Parking Building project in the amount of P27,443,629.97; [47] and
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of
the contract[48] with MANA Architecture & Interior Design Co. (MANA) for the design and
architectural services covering the Makati Parking Building project in the amount of
P429,011.48.[49]
On March 6, 2015, the Ombudsman created another Special Panel of Investigators to

conduct a preliminary investigation and administrative adjudication on the OMB Cases
(2nd Special Panel).[50] Thereafter, on March 9, 2015, the 2nd Special Panel issued separate
orders[51] for each of the OMB Cases, requiring Binay, Jr., et al. to file their respective
counter-affidavits.[52]
Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the
recommendation of the 2nd Special Panel, issued on March 10, 2015, the subject preventive
suspension order, placing Binay, Jr., et al. under preventive suspension for not more than
six (6) months without pay, during the pendency of the OMB Cases. [53] The Ombudsman
ruled that the requisites for the preventive suspension of a public officer are present,
[54]
finding that: (a) the evidence of Binay, Jr., et al.'s guilt was strong given that (1) the
losing bidders and members of the Bids and Awards Committee of Makati City had attested
to the irregularities attending the Makati Parking Building project; (2) the documents on
record negated the publication of bids; and (3) the disbursement vouchers, checks, and
official receipts showed the release of funds; and (b) (1) Binay, Jr., et al. were
administratively charged with Grave Misconduct, Serious Dishonesty, and Conduct
Prejudicial to the Best Interest of the Service; (2) said charges, if proven to be true, warrant
removal from public service under the Revised Rules on Administrative Cases in the Civil
Service (RRACCS), and (3) Binay, Jr., et al.'s respective positions give them access to
public records and allow them to influence possible witnesses; hence, their continued stay
in office may prejudice the investigation relative to the OMB Cases filed against them.
[55]
Consequently, the Ombudsman directed the Department of Interior and Local
Government (DILG), through Secretary Manuel A. Roxas II (Secretary Roxas), to
immediately implement the preventive suspension order against Binay, Jr., et al., upon
receipt of the same.[56]
On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the
City Mayor, and received by Maricon Ausan, a member of Binay, Jr.'s staff. [57]
The Proceedings Before the CA
On even date,[58] Binay, Jr. filed a petition for certiorari[59] before the CA, docketed as CA-
G.R. SP No. 139453, seeking the nullification of the preventive suspension order, and
praying for the issuance of a TRO and/or WPI to enjoin its implementation. [60] Primarily,
Binay, Jr. argued that he could not be held administratively liable for any anomalous
activity attending any of the five (5) phases of the Makati Parking Building project since: ( a)
Phases I and II were undertaken before he was elected Mayor of Makati in 2010; and ( b)
Phases III to V transpired during his first term and that his re-election as City Mayor of
Makati for a second term effectively condoned his administrative liability therefor, if
any, thus rendering the administrative cases against him moot and academic. [61] In any
event, Binay, Jr. claimed that the Ombudsman's preventive suspension order failed
to show that the evidence of guilt presented against him is strong, maintaining that he
did not participate in any of the purported irregularities. [62] In support of his prayer for
injunctive relief, Binay, Jr. argued that he has a clear and unmistakable right to hold public
Josef Elvin Campos
office, having won by landslide vote in the 2010 and 2013 elections, and that, in view of the
condonation doctrine, as well as the lack of evidence to sustain the charges against him, his
suspension from office would undeservedly deprive the electorate of the services of the
person they have conscientiously chosen and voted into office. [63]
On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of
the preventive suspension order through the DILG National Capital Region - Regional
Director, Renato L. Brion, CESO III (Director Brion), who posted a copy thereof on the wall
of the Makati City Hall after failing to personally serve the same on Binay, Jr. as the points
of entry to the Makati City Hall were closed. At around 9:47 a.m., Assistant City Prosecutor
of Makati Billy C. Evangelista administered the oath of office on Makati City Vice Mayor
Romulo V. Peña, Jr. (Peña, Jr.) who thereupon assumed office as Acting Mayor. [64]
At noon of the same day, the CA issued a Resolution [65] (dated March 16, 2015), granting
Binay, Jr.'s prayer for a TRO, [66] notwithstanding Pena, Jr.'s assumption of duties as Acting
Mayor earlier that day.[67] Citing the case of Governor Garcia, Jr. v. CA,[68] the CA found that
it was more prudent on its part to issue a TRO in view of the extreme urgency of the matter
and seriousness of the issues raised, considering that if it were established that the acts
subject of the administrative cases against Binay, Jr. were all committed during his prior
term, then, applying the condonation doctrine, Binay, Jr.'s re-election meant that he can no
longer be administratively charged. [69] The CA then directed the Ombudsman to comment
on Binay, Jr.'s petition for certiorari. [70]
On March 17, 2015, the Ombudsman manifested [71] that the TRO did not state what act was
being restrained and that since the preventive suspension order had already been served
and implemented, there was no longer any act to restrain. [72]
On the same day, Binay, Jr. filed a petition for contempt, [73] docketed as CA-G.R. SP No.
139504, accusing Secretary Roxas, Director Brion, the officials of the Philippine National
Police, and Pena, Jr. of deliberately refusing to obey the CA, thereby allegedly impeding,
obstructing, or degrading the administration of justice. [74] The Ombudsman and Department
of Justice Secretary Leila M. De Lima were subsequently impleaded as additional
respondents upon Binay, Jr.'s filing of the amended and supplemental petition for
contempt[75] (petition for contempt) on March 19, 2015. [76] Among others, Binay, Jr. accused
the Ombudsman and other respondents therein for willfully and maliciously ignoring the
TRO issued by the CA against the preventive suspension order. [77]
In a Resolution[78] dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP

No. 139453 and CA-G.R. SP No. 139504, and, without necessarily giving due course to
Binay, Jr.'s petition for contempt, directed the Ombudsman to file her comment thereto.
[79]
The cases were set for hearing of oral arguments on March 30 and 31, 2015. [80]
The Proceedings Before the Court
Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the
Ombudsman filed the present petition before this Court, assailing the CA's March 16, 2015
Resolution, which granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453, and the
March 20, 2015 Resolution directing her to file a comment on Binay, Jr.'s petition for
contempt in CA-G.R. SP No. 139504. [81] The Ombudsman claims that: (a) the CA had no
jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA 6770, [82] or "The
Ombudsman Act of 1989," which states that no injunctive writ could be issued to delay the
Ombudsman's investigation unless there is prima facie evidence that the subject matter
thereof is outside the latter's jurisdiction; [83] and (b) the CA's directive for the Ombudsman to
comment on Binay, Jr.'s petition for contempt is illegal and improper, considering that the
Ombudsman is an impeachable officer, and therefore, cannot be subjected to contempt
proceedings.[84]
In his comment[85] filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the
1987 Constitution specifically grants the CA judicial power to review acts of any branch or
instrumentality of government, including the Office of the Ombudsman, in case of grave
abuse of discretion amounting to lack or excess of jurisdiction, which he asserts was
committed in this case when said office issued the preventive suspension order against him.
[86]
Binay, Jr. posits that it was incumbent upon the Ombudsman to1 have been apprised of
the condonation doctrine as this would have weighed heavily in determining whether there
Josef Elvin Campos
was strong evidence to warrant the issuance of the preventive suspension order. [87] In this
relation, Binay, Jr. maintains that the CA correctly enjoined the implementation of the
preventive suspension order given his clear and unmistakable right to public office, and that
it is clear that he could not be held administratively liable for any of the charges against him
since his subsequent re-election in 2013 operated as a condonation of any administrative
offenses he may have committed during his previous term. [88] As regards the CA's order for
the Ombudsman to comment on his petition for contempt, Binay, Jr. submits that while the
Ombudsman is indeed an impeachable officer and, hence, cannot be removed from office
except by way of impeachment, an action for contempt imposes the penalty of fine and
imprisonment, without necessarily resulting in removal from office. Thus, the fact that the
Ombudsman is an impeachable officer should not deprive the CA of its inherent power to
punish contempt.[89]
Meanwhile, the CA issued a Resolution[90] dated April 6, 2015, after the oral arguments
before it were held,[91] granting Binay, Jr.'s prayer for a WPI, which further enjoined the
implementation of the preventive suspension order. In so ruling, the CA found that Binay, Jr.
has an ostensible right to the final relief prayed for, namely, the nullification of the
preventive suspension order, in view of the condonation doctrine, citing Aguinaldo v.
Santos.[92] Particularly, it found that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati
condoned any administrative liability arising from anomalous activities relative to the Makati
Parking Building project from 2007 to 2013. [93] In this regard, the CA added that, although
there were acts which were apparently committed by Binay, Jr. beyond his first term —
namely, the alleged payments on July 3, July 4, and July 24, 2013, [94] corresponding to the
services of Hillmarc's and MANA - still, Binay, Jr. cannot be held administratively liable
therefor based on the cases of Salalima v. Guingona, Jr.,[95] and Mayor Garcia v.
Mojica[96] wherein the condonation doctrine was still applied by the Court although the
payments were made after the official's re-election, reasoning that the payments were
merely effected pursuant to contracts executed before said re-election. [97] To this, the CA
added that there was no concrete evidence of Binay, Jr.'s participation for the alleged
payments made on July 3, 4, and 24, 2013. [98]
In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution,
the Ombudsman filed a supplemental petition [99] before this Court, arguing that the
condonation doctrine is irrelevant to the determination of whether the evidence of guilt is
strong for purposes of issuing preventive suspension orders. The Ombudsman also
maintained that a reliance on the condonation doctrine is a matter of defense, which should
have been raised by Binay, Jr. before it during the administrative proceedings, and that, at
any rate, there is no condonation because Binay, Jr. committed acts subject of the OMB
Complaint after his re-election in 2013. [100]
On April 14 and 21, 2015,[101] the Court conducted hearings for the oral arguments of the
parties. Thereafter, they were required to file their respective memoranda. [102] In compliance
thereto, the Ombudsman filed her Memorandum [103] on May 20, 2015, while Binay, Jr.
submitted his Memorandum the following day. [104]
Pursuant to a Resolution[105] dated June 16, 2015, the Court directed the parties to comment
on each other's memoranda, and the OSG to comment on the Ombudsman's
Memorandum, all within ten (10) days from receipt of the notice.
On July 15, 2015, both parties filed their respective comments to each other's memoranda.
[106]
Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu of Comment,
[107]
simply stating that it was mutually agreed upon that the Office of the Ombudsman would
file its Memorandum, consistent with its desire to state its "institutional position." [108] In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman pleaded,
among others, that this Court abandon the condonation doctrine. [109] In view of the
foregoing, the case was deemed submitted for resolution.
The Issues Before the Court
Based on the parties' respective pleadings, and as raised during the oral arguments
conducted before this Court, the main issues to be resolved in seriatim are as follows:
Josef Elvin Campos
I. Whether or not the present petition, and not motions for reconsideration of the
assailed CA issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504,
is the Ombudsman's plain, speedy, and adequate remedy;
II. Whether or not the CA has subject matter jurisdiction over the main petition for
certiorari in CA-G.R. SP No. 139453;
III. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI
enjoining the implementation of a preventive suspension order issued by the
Ombudsman;
IV. Whether or not the CA gravely abused its discretion in issuing the TRO and
eventually, the WPI in CA-G.R. SP No. 139453 enjoining the implementation of
the preventive suspension order against Binay, Jr. based on the condonation
doctrine; and
V. Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s
petition for contempt in CA- G.R. SP No. 139504 is improper and illegal.
The petition is partly meritorious.

I.
A common requirement to both a petition for certiorari and a petition for prohibition taken

under Rule 65 of the 1997 Rules of Civil Procedure is that the petitioner has no other plain,
speedy, and adequate remedy in the ordinary course of law. Sections 1 and 2 thereof
provide:
Section 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, 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, 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.
x x x x
Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions,
are 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 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 r with certainty and praying that
judgment be rendered commanding the respondent to desist from further proceedings in the
action or matter specified therein, or otherwise granting such incidental reliefs as law and
justice may require.
x x x x (Emphases supplied)
Hence, as a general rule, a motion for reconsideration must first be filed with the lower court
prior to resorting to the extraordinary remedy of certiorari or prohibition since a motion for
reconsideration may still be considered as a plain, speedy, and adequate remedy in the
ordinary course of law. The rationale for the pre-requisite is to grant an opportunity for the
lower court or agency to correct any actual or perceived error attributed to it by the re-
examination of the legal and factual circumstances of the case. [110]
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other
legal remedies and the danger of failure of justice without the writ, that must usually
determine the propriety of certiorari [or prohibition]. A remedy is plain, speedy[,] and
adequate if it will promptly relieve the petitioner from the injurious effects of the judgment,
order, or resolution of the lower court or agency, x x x." [111]/
In this light, certain exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also apply to a
petition for prohibition.[112] These are: (a) where the order is a patent nullity, as where the
Josef Elvin Campos
court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings
have been duly raised and passed upon by the lower court, or are the same as those raised
and passed upon in the lower court; (c) where there is an urgent necessity for the resolution
of the question and any further delay would prejudice the interests of the Government or of
the petitioner or the subject matter of the action is perishable; (d) where, under the
circumstances, a motion for reconsideration would be useless; (e) where petitioner was
deprived of due process and there is extreme urgency for relief; (f) where, in a criminal
case, relief from an order of arrest is urgent and the granting of such relief by the trial court
is improbable; (g) where the proceedings in the lower court are a nullity for lack of due
process; (h) where the proceedings were ex parte or in which the petitioner had no
opportunity to object; and (i) where the issue raised is one purely of law or where public
interest is involved.[113]
In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the
first time, the question on the authority of the CA - and of this Court, for that matter - to
enjoin the implementation of a preventive suspension order issued by the Office of the
Ombudsman is put to the fore. This case tests the constitutional and statutory limits of the
fundamental powers of key government institutions - namely, the Office of the Ombudsman,
the Legislature, and the Judiciary - and hence, involves an issue of transcendental public
importance that demands no less than a careful but expeditious resolution. Also raised is
the equally important issue on the propriety of the continuous application of the condonation
doctrine as invoked by a public officer who desires exculpation from administrative liability.
As such, the Ombudsman's direct resort to certiorari and prohibition before this Court,
notwithstanding her failure to move for the prior reconsideration of the assailed issuances in
CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504 before the CA, is justified.
II.
Albeit raised for the first time by the Ombudsman in her Memorandum, [114] it is nonetheless
proper to resolve the issue on the CA's lack of subject matter jurisdiction over the main
petition for certiorari in CA-G.R. SP No. 139453, in view of the well-established rule that a
court's jurisdiction over the subject matter may be raised at any stage of the proceedings.
The rationale is that subject matter jurisdiction is conferred by law, and the lack of it affects
the very authority of the court to take cognizance of and to render judgment on the action.
[115]
Hence, it should be preliminarily determined if the CA indeed had subject matter
jurisdiction over the main CA-G.R. SP No. 139453 petition, as the same determines the
validity of all subsequent proceedings relative thereto. It is noteworthy to point out that
Binay, Jr. was given the opportunity by this Court to be heard on this issue, [116] as he, in fact,
duly submitted his opposition through his comment to the Ombudsman's Memorandum.
[117]
That being said, the Court perceives no reasonable objection against ruling on this
issue.
The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the
main petition, and her corollary prayer for its dismissal, is based on her interpretation of
Section 14, RA 6770, or the Ombudsman Act,[118] which reads in full:
Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is a prima
facie evidence that the subject matter of the investigation is outside the jurisdiction of the
Office of the Ombudsman.
No court shall hear any appeal or application for remedy against the decision or findings of
the Ombudsman, except the Supreme Court, on pure question of law.
The subject provision may be dissected into two (2) parts.
The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the
Supreme Court[119]) from issuing a writ of injunction to delay an investigation being
conducted by the Office of the Ombudsman. Generally speaking, "[injunction is a judicial
writ, process or proceeding whereby a party is ordered to do or refrain from doing a certain
act. It may be the main action or merely a provisional remedy for and as an incident in the
main action."[120] Considering the textual qualifier "to delay," which connotes a suspension of
an action while the main case remains pending, the "writ of injunction" mentioned in this
paragraph could only refer to injunctions of the provisional kind, consistent with the nature
of a provisional injunctive relief.
Josef Elvin Campos
The exception to the no injunction policy is when there is prima facie evidence that the
subject matter of the investigation is outside the office's jurisdiction. The Office of the
Ombudsman has disciplinary authority over all elective and appointive officials of the
government and its subdivisions, instrumentalities, and agencies, with the exception only of
impeachable officers, Members of Congress, and the Judiciary. [121] Nonetheless, the
Ombudsman retains the power to investigate any serious misconduct in office allegedly
committed by officials removable by impeachment, for the purpose of filing a verified
complaint for impeachment, if warranted.[122] Note that the Ombudsman has concurrent
jurisdiction over certain administrative cases which are within the jurisdiction of the regular
courts or administrative agencies, but has primary jurisdiction to investigate any act or
omission of a public officer or employee who is under the jurisdiction of the Sandiganbayan.
[123]
On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal
or application for remedy may be heard against the decision or findings of the Ombudsman,
with the exception of the Supreme Court on pure questions of law. This paragraph, which
the Ombudsman particularly relies on in arguing that the CA had no jurisdiction over the
main CA-G.R. SP No. 139453 petition, as it is supposedly this Court which has the sole
jurisdiction to conduct a judicial review of its decisions or findings, is vague for two (2)
reasons: (1) it is unclear what the phrase "application for remedy" or the word "findings"
refers to; and (2) it does not specify what procedural remedy is solely allowable to this
Court, save that the same be taken only against a pure question of law. The task then, is to
apply the relevant principles of statutory construction to resolve the ambiguity.
"The underlying principle of all construction is that the intent of the legislature should be
sought in the words employed to express it, and that when found[,] it should be made to
govern, x x x. If the words of the law seem to be of doubtful import, it may then perhaps
become necessary to look beyond them in order to ascertain what was in the legislative
mind at the time the law was enacted; what the circumstances were, under which the action
was taken; what evil, if any, was meant to be redressed; x x x [a]nd where the law has
contemporaneously been put into operation, and in doing so a construction has necessarily
been put upon it, this construction, especially if followed for some considerable period, is
entitled to great respect, as being very probably a true expression of the legislative purpose,
and is not lightly to be overruled, although it is not conclusive." [124]
As an aid to construction, courts may avail themselves of the actual proceedings of the
legislative body in interpreting a statute of doubtful meaning. In case of doubt as to what a
provision of a statute means, the meaning put to the provision during the legislative
deliberations may be adopted,[125] albeit not controlling in the interpretation of the law. [126]
A. The Senate deliberations cited by the

Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.
The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly
on the matter of judicial review of her office's decisions or findings, is supposedly clear from
the following Senate deliberations:[127]
Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase
"petition for" delete the word "review" and in lieu thereof, insert the word CERTIORARI. So
that, review or appeal from the decision of the Ombudsman would only be taken not on a
petition for review, but on certiorari.
The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more
difficult to reverse the decision under review?
Senator Angara. It has two practical effect ways, Mr. President. First is that the findings
of facts of the Ombudsman would be almost conclusive if supported by substantial
evidence. Second, we would not unnecessarily clog the docket of the Supreme
Court. So, it in effect will be a very strict appeal procedure.
xxxx
Josef Elvin Campos
Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are
exhaustive remedies available to a respondent, the respondent himself has the right to
exhaust the administrative remedies available to him?
Senator Angara. Yes, Mr. President, that is correct.
Senator Guingona. And he himself may cut the proceeding short by appealing to the
Supreme Court only on certiorari?
Senator Angara. On question of law, yes.
Senator Guingona. And no other remedy is available to him?
Senator Angara. Going to the Supreme Court, Mr. President?
Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a
presidential appointee who is the respondent, if there is f no certiorari available, is the
respondent given the right to exhaust his administrative remedies first before the
Ombudsman can take the appropriate action?
Senator Angara. Yes, Mr. President, because we do not intend to change the
administrative law principle that before one can go to court, he must exhaust all
administrative remedies xxx available to him before he goes and seeks judicial review.
xxxx
Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the
method of appeal from one of a petition for review to a petition for certiorari?
Senator Angara. To make it consistent, Mr. President, with the provision here in the
bill to the effect that the finding of facts of the Ombudsman is conclusive if
supported by substantial evidence.
Senator Gonzales. A statement has been made by the Honorable Presiding Officer to
which I concur, that in an appeal by certiorari, the appeal is more difficult. Because in
certiorari it is a matter of discretion on the part of the court, whether to give due
course to the petition or dismiss it outright. Is that not correct, Mr. President?
Senator Angara. That is absolutely correct, Mr. President
Senator Gonzales. And in a petition for certiorari, the issue is limited to whether or

not the Ombudsman here has acted without jurisdiction and has committed a grave
abuse of discretion amounting to lack of jurisdiction. Is that not the consequence, Mr.
President.
Senator Angara. That is correct, Mr. President.
Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee
is to make it harder to have a judicial review, but should be limited only to cases that I
have enumerated.
Senator Angara. Yes, Mr. President.
Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction
between a petition for review and a petition for certiorari; because before, under the 1935
Constitution appeal from any order, ruling or decision of the COMELEC shall be by means
of review. But under the Constitution it is now by certiorari and the Supreme Court said that
by this change, the court exercising judicial review will not inquire into the facts, into the
evidence, because we will not go deeply by way of review into the evidence on record but
its authority will be limited to a determination of whether the administrative agency acted
without, or in excess of, jurisdiction, or committed a grave abuse of discretion. So, I assume
that that is the purpose of this amendment, Mr. President.
Josef Elvin Campos
Senator Angara. The distinguished Gentleman has stated it so well.
Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well
stated, Mr. President.
xxxx
The President. It is evident that there must be some final authority to render
decisions. Should it be the Ombudsman or should it be the Supreme Court?
Senator Angara. As I understand it, under our scheme of government, Mr. President, it is
and has to be the Supreme Court to make the final determination.
The President. Then if that is so, we have to modify Section 17.
Senator Angara. That is why, Mr. President, some of our Colleagues have made a
reservation to introduce an appropriate change during the period of Individual Amendments.
xxxx
The President. All right. Is there any objection to the amendment inserting the
word CERTIORARI instead of "review"? [Silence] Hearing none, the same is approved.[128]
Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that
the provision debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that
the exchange begins with the suggestion of Senator Angara to delete the word "review" that
comes after the phrase "petition for review" and, in its stead, insert the word "certiorari" so
that the "review or appeal from the decision of the Ombudsman would not only be taken on
a petition for review, but on certiorari" The ensuing exchange between Senators Gonzales
and Angara then dwells on the purpose of changing the method of review from one of a
petition for review to a petition for certiorari - that is, to make "the appeal x x x more
difficult." Ultimately, the amendment to the change in wording, from "petition for review" to
"petition for certiorari" was approved.
Noticeably, these references to a "petition for review" and the proposed "petition
for certiorari" are nowhere to be found in the text of Section 14, RA 6770. In fact, it was
earlier mentioned that this provision, particularly its second paragraph, does not indicate
what specific procedural remedy one should take in assailing a decision or finding of the
Ombudsman; it only reveals that the remedy be taken to this Court based on pure questions
of law. More so, it was even commented upon during the oral arguments of this case [129] that
there was no debate or clarification made on the current formulation of the second
paragraph of Section 14, RA 6770 per the available excerpts of the Senate deliberations. In
any case, at least for the above-cited deliberations, the Court finds no adequate support to
sustain the Ombudsman's entreaty that the CA had no subject matter jurisdiction over the
main CA-G.R. SP No. 139453 petition.
On the contrary, it actually makes greater sense to posit that these deliberations refer to
another Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter
textually reflects the approval of Senator Angara's suggested amendment, i.e., that the
Ombudsman's decision or finding may be assailed in a petition for certiorari to this Court
(fourth paragraph), and further, his comment on the conclusive nature of the factual findings
of the Ombudsman, if supported by substantial evidence (third paragraph):
Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the Office of
the Ombudsman are immediately effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the
Ombudsman must be filed within five (5) days after receipt of written notice and shall be
entertained only on any of the following grounds:
(1) New evidence has been discovered which materially affects the order, directive or
decision;
(2) Errors of law or irregularities have been committed prejudicial to the interest of the
Josef Elvin Campos
movant. The motion for reconsideration shall be resolved within three (3) days from
filing: Provided, That only one motion for reconsideration shall be entertained.
Findings of fact by the Office of the Ombudsman when supported by substantial evidence
are conclusive. Any order, directive or decision imposing the penalty of public censure or
reprimand, suspension of not more than one (1) month's salary shall be final and
unappealable.
In all administrative disciplinary cases, orders, directives, or decisions of the Office

of the Ombudsman may be appealed to the Supreme Court by filing a petition
for certiorari within ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for reconsideration in accordance with
The above rules may be amended or modified by the Office of the ' Ombudsman as the
interest of justice may require. (Emphasis and underscoring supplied)
At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a
"petition for certiorari" should be taken in accordance with Rule 45 of the Rules of Court, as
it is well-known that under the present 1997 Rules of Civil Procedure, petitions
for certiorari are governed by Rule 65 of the said Rules. However, it should be discerned
that the Ombudsman Act was passed way back in 1989 [130] and, hence, before the advent of
the 1997 Rules of Civil Procedure.[131] At that time, the governing 1964 Rules of Court,
[132]
consistent with Section 27, RA 6770, referred to the appeal taken thereunder as a
petition for certiorari, thus possibly explaining the remedy's textual denomination, at least in
the provision's final approved version:
RULE 45
Appeal from Court of Appeals to Supreme Court
SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari, from
a judgment of the Court of Appeals, by filing with the Supreme Court a petition
for certiorari, within fifteen (15) days from notice of judgment or of the denial of his motion
for reconsideration filed in due time, and paying at the same time, to the clerk of said court
the corresponding docketing fee. The petition shall not be acted upon without proof of
service of a copy thereof to the Court of Appeals. (Emphasis supplied)
B. Construing the second paragraph of Section 14, RA 6770.
The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA
6770 notwithstanding, the other principles of statutory construction can apply to ascertain
the meaning of the provision.
To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall
hear any appeal or application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law." ;
As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of
remedies against issuances of the Ombudsman, by prohibiting: (a) an appeal against
any decision or finding of the Ombudsman, and (b) "any application of remedy" (subject to
the exception below) against the same. To clarify, the phrase "application for remedy,"
being a generally worded provision, and being separated from the term "appeal" by the
disjunctive "or",[133] refers to any remedy (whether taken mainly or provisionally), except an
appeal, following the maxim generalia verba sunt generaliter intelligenda: general words are
to be understood in a general sense. [134] By the same principle, the word "findings," which is
also separated from the word "decision" by the disjunctive "or", would therefore refer to any
finding made by the Ombudsman (whether final or provisional), except a decision.
The subject provision, however, crafts an exception to the foregoing general rule. While the
specific procedural vehicle is not explicit from its text, it is fairly deducible that the second
paragraph of Section 14, RA 6770 excepts, as the only allowable remedy against "the
decision or findings of the Ombudsman," a Rule 45 appeal, for the reason that it is the
only remedy taken to the Supreme Court on "pure questions of law," whether under
the 1964 Rules of Court or the 1997 Rules of Civil Procedure:
Josef Elvin Campos
Rule 45, 1964 Rules of Court
RULE 45
Appeal from Court of Appeals to Supreme Court
xxxx
Section 2. Contents of Petition. — The petition shall contain a concise statement of the
matters involved, the assignment of errors made in the court below, and the reasons relied
on for the allowance of the petition, and it should be accompanied with a true copy of the
judgment sought to be reviewed, together with twelve (12) copies of the record on appeal, if
any, and of the petitioner's brief as filed in the Court of Appeals. A verified statement of the
date when notice of judgment and denial of the motion for reconsideration, if any, were
received shall accompany the petition.
Only questions of law may be raised in the petition and must be distinctly set forth. If no
record on appeal has been filed in the Court of Appeals, the clerk of the Supreme Court,
upon admission of the petition, shall demand from the Court of Appeals the elevation of the
whole record of the case. (Emphasis and underscoring supplied)
Rule 45, 1997 Rules of Civil Procedure
RULE 45
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. - A party desiring to appeal

by certiorari from a judgment, final order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a verified petition for review
on certiorari. The petition may include an application for a writ of preliminary injunction or
other provisional remedies and shall raise only questions of law, which must be
distinctly set forth. The petitioner may seek the same provisional remedies by verified
motion filed in the same action or proceeding at any time during its pendency. (Emphasis
and underscoring supplied)
That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a
petition for certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of
Procedure is a suggestion that defies traditional norms of procedure. It is basic procedural
law that a Rule 65 petition is based on errors of jurisdiction, and not errors of judgment to
which the classifications of (a) questions of fact, (b) questions of law, or (c) questions of
mixed fact and law, relate to. In fact, there is no procedural rule, whether in the old or new
Rules, which grounds a Rule 65 petition on pure questions of law. Indeed, it is also a
statutory construction principle that the lawmaking body cannot be said to have intended the
establishment of conflicting and hostile systems on the same subject. Such a result would
render legislation a useless and idle ceremony, and subject the laws to uncertainty and
unintelligibility.[135] There should then be no confusion that the second paragraph of Section
14, RA 6770 refers to a Rule 45 appeal to this Court, and no other. In sum, the appropriate
construction of this Ombudsman Act provision is that all remedies against issuances of the
Office of the Ombudsman are prohibited, except the above-stated Rule 45 remedy to the
Court on pure questions of law.
C. Validity of the second paragraph of

Section 14, RA 6770.
Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on
remedies is inappropriate since a Rule 45 appeal -which is within the sphere of the rules of
procedure promulgated by this Court - can only be taken against final decisions or orders of
lower courts,[136] and not against "findings" of quasi-judicial agencies. As will be later
elaborated upon, Congress cannot interfere with matters of procedure; hence, it cannot alter
the scope of a Rule 45 appeal so as to apply to interlocutory "findings" issued by the
Ombudsman. More significantly, by confining the remedy to a Rule 45 appeal, the
provision takes away the remedy of certiorari, grounded on errors of jurisdiction, in
denigration of the judicial power constitutionally vested in courts. In this light, the second
paragraph of Section 14, RA 6770 also increased this Court's appellate jurisdiction, without
Josef Elvin Campos
a showing, however, that it gave its consent to the same. The provision is, in fact, very
similar to the fourth paragraph of Section 27, RA 6770 (as above-cited), which was
invalidated in the case of Fabian v. Desiertoni[137] (Fabian).[138]
In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as
unconstitutional since it had the effect of increasing the appellate jurisdiction of the Court
without its advice and concurrence in violation of Section 30, Article VI of the 1987
Constitution.[139] Moreover, this provision was found to be inconsistent with Section 1, Rule
45 of the present 1997 Rules of Procedure which, as above-intimated, applies only to a
review of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court
of Tax Appeals, the Regional Trial Court, or other courts authorized by law;" and not of
quasi-judicial agencies, such as the Office of the Ombudsman, the remedy now being a
Rule 43 appeal to the Court of Appeals. In Ruivivar v. Office of the Ombudsman,[140] the
Court's ratiocinations and ruling in Fabian were recounted:
The case of Fabian v. Desierto arose from the doubt created in the application of Section 27
of R.A. No. 6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of
Procedure of the Office of the Ombudsman) on the availability of appeal before the
Supreme Court to assail a decision or order of the Ombudsman in administrative
cases. In Fabian, we invalidated Section 27 of R.A. No. 6770 (and Section 7, Rule III of
A.O. No. 7 and the other rules implementing the Act) insofar as it provided for appeal
by certiorari under Rule 45 from the decisions or orders of the Ombudsman in
administrative cases. We held that Section 27 of R.A. No. 6770 had the effect, not
only of increasing the appellate jurisdiction of this Court without its advice and
concurrence in violation of Section 30, Article VI of the Constitution; it was also
inconsistent with Section 1, Rule 45 of the Rules of Court which provides that a
petition for review on certiorari shall apply only to a review of "judgments or final
orders of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the
Regional Trial Court, or other courts authorized by law." We pointedly said:
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be
struck down as unconstitutional, and in line with the regulatory philosophy adopted in
appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals
from decisions of the Office of the Ombudsman in administrative disciplinary cases should
be taken to the CA under the provisions of Rule 43. [141] (Emphasis supplied)
Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or
findings" of the Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph
of Section 27, RA 6770 [142] - attempts to effectively increase the Supreme Court's appellate
jurisdiction without its advice and concurrence, [143] it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary to the Ombudsman's
posturing,[144] Fabian should squarely apply since the above-stated Ombudsman Act
provisions are in part materia in that they "cover the same specific or particular subject
matter,"[145] that is, the manner of judicial review over issuances of the Ombudsman.
Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the
existence of the CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453
petition, including all subsequent proceedings relative thereto, as the Ombudsman herself
has developed, the Court deems it proper to resolve this issue ex mero motu (on its own
motion[146]). This procedure, as was similarly adopted in Fabian, finds its bearings in settled
case law:
The conventional rule, however, is that a challenge on constitutional grounds must be
raised by a party to the case, neither of whom did so in this case, but that is not an inflexible
rule, as we shall explain.
Since the constitution is intended for the observance of the judiciary and other departments
of the government and the judges are sworn to support its provisions, the courts are not at
liberty to overlook or disregard its commands or countenance evasions thereof. When it is
clear , that a statute transgresses the authority vested in a legislative body, it is the duty of
the courts to declare that the constitution, and not the statute, governs in a case before
them for judgment.
Thus, while courts will not ordinarily pass upon constitutional questions which are not raised
in the pleadings, the rule has been recognized to admit of certain exceptions. It does not
preclude a court from inquiring into its own jurisdiction or compel it to enter a judgment that
Josef Elvin Campos
it lacks jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding
depends is unconstitutional, the court has no jurisdiction in the proceeding, and since it may
determine whether or not it has jurisdiction, it necessarily follows that it may inquire into the
constitutionality of the statute.
Constitutional questions, not raised in the regular and orderly procedure in the trial
are ordinarily rejected unless the jurisdiction of the court below or that of the
appellate court is involved in which case it may be raised at any time or on the
court's own motion. The Court ex mero motu may take cognizance of lack of jurisdiction at
any point in the case where that fact is developed. The court has a clearly recognized right
to determine its own jurisdiction in any proceeding. [147] (Emphasis supplied)
D. Consequence of invalidity.
In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay,
Jr. before the CA in order to nullify the preventive suspension order issued by the
Ombudsman, an interlocutory order, [148] hence, unappealable.[149]
In several cases decided after Fabian, the Court has ruled that Rule 65 petitions
for certiorari against unappelable issuances[150] of the Ombudsman should be filed before
the CA, and not directly before this Court:
In Office of the Ombudsman v. Capulong [151] (March 12, 2014), wherein a preventive

suspension order issued by the Office of the Ombudsman was - similar to this case -
assailed through a Rule 65 petition for certiorari filed by the public officer before the CA, the
Court held that "[t]here being a finding of grave abuse of discretion on the part of the
Ombudsman, it was certainly imperative for the CA to grant incidental reliefs, as sanctioned
by Section 1 of Rule 65."[152]
In Dagan v. Office of the Ombudsman [153] (November 19, 2013), involving a Rule 65 petition
for certiorari assailing a final and unappealable order of the Office of the Ombudsman in an
administrative case, the Court remarked that "petitioner employed the correct mode of
review in this case, i.e., a special civil action for certiorari before the Court of Appeals." [154] In
this relation, it stated that while "a special civil action for Certiorari is within the concurrent
original jurisdiction of the Supreme Court and the Court of Appeals, such petition should be
initially filed with the Court of Appeals in observance of the doctrine of hierarchy of courts."
Further, the Court upheld Barata v. Abalos, Jr.[155] (June 6, 2001), wherein it was ruled that
the remedy against final and unappealable orders of the Office of the Ombudsman in an
administrative case was a Rule 65 petition to the CA. The same verdict was reached
in Ruivivar[156] (September 16, 2008).
Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the
Court, consistent with existing jurisprudence, concludes that the CA has subject matter
jurisdiction over the main CA-G.R. SP No. 139453 petition. That being said, the Court now
examines the objections of the Ombudsman, this time against the CA's authority to issue
the assailed TRO and WPI against the implementation of the preventive suspension order,
incidental to that main case.
III.
From the inception of these proceedings, the Ombudsman has been adamant that the CA
has no jurisdiction to issue any provisional injunctive writ against her office to enjoin its
preventive suspension orders. As basis, she invokes the first paragraph of Section 14,
RA 6770 in conjunction with her office's independence under the 1987 Constitution. She
advances the idea that "[i]n order to further ensure [her office's] independence, [RA 6770]
likewise insulated it from judicial intervention," [157] particularly, "from injunctive reliefs
traditionally obtainable from the courts," [158] claiming that said writs may work "just as
effectively as direct harassment or political pressure would." [159]
A. The concept of Ombudsman independence.
Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of
the Ombudsman:
Josef Elvin Campos
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. (Emphasis supplied)
In Gonzales III v. Office of the President [160] (Gonzales III), the Court traced the historical
underpinnings of the Office of the Ombudsman:
Prior to the 1973 Constitution, past presidents established several Ombudsman-like
agencies to serve as the people's medium for airing grievances and for direct redress
against abuses and misconduct in the government. Ultimately, however, these agencies
failed to fully realize their objective for lack of the political independence necessary for the
effective performance of their function as government critic.
It was under the 1973 Constitution that the Office of the Ombudsman became a
constitutionally-mandated office to give it political independence and adequate powers to
enforce its mandate. Pursuant to the ( 1973 Constitution, President Ferdinand Marcos
enacted Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and PD No.
1630, creating the Office of the Ombudsman to be known as Tanodbayan. It was tasked
principally to investigate, on complaint or motu proprio, any administrative act of any
administrative agency, including any government-owned or controlled corporation. When
the Office of the Tanodbayan was reorganized in 1979, the powers previously vested in the
Special Prosecutor were transferred to the Tanodbayan himself. He was given the exclusive
authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan,
file the corresponding information, and control the prosecution of these cases.
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27,
Article II and the standard of accountability in public service under Section 1, Article XI of
the 1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption.
Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest lives. [161] (Emphasis supplied)
More significantly, Gonzales III explained the broad scope of the office's mandate, and in
correlation, the impetus behind its independence:
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is
envisioned to be the "protector of the people" against the inept, abusive, and corrupt in the
Government, to function essentially as a complaints and action bureau. This constitutional
vision of a Philippine Ombudsman practically intends to make the Ombudsman an authority
to directly check and guard against the ills, abuses and excesses , of the bureaucracy.
Pursuant to Section 13 (8), Article XI of the 1987 Constitution, Congress enacted RA No.
6770 to enable it to further realize the vision of the Constitution. Section 21 of RA No. 6770
provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of the
Government and its subdivisions, instrumentalities, and agencies, including Members of the
Cabinet, local government, government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by impeachment or over
Members of Congress, and the Judiciary.
As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its
actions, although not squarely falling under the broad powers granted [to] it by the
Constitution and by RA No. 6770, if these actions are reasonably in line with its official
function and consistent with the law and the Constitution.
The Ombudsman's broad investigative and disciplinary powers include all acts of
malfeasance, misfeasance, and nonfeasance of all public officials, including Members of the
Cabinet and key Executive officers, during their tenure. To support these broad powers, the
Constitution saw it fit to insulate the Office of the Ombudsman from the pressures
and influence of officialdom and partisan politics and from fear of external reprisal by
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making it an "independent" office, x x x.
x x x x
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-
handling investigative bodies." It has powers, both constitutional and statutory, that are
commensurate , with its daunting task of enforcing accountability of public officers.
[162]
Gonzales III is the first case which grappled with the meaning of the Ombudsman's
independence vis-a-vis the independence of the other constitutional bodies. Pertinently, the
Court observed:
(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics - they do not owe their existence to any act
of Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal
autonomy. In general terms, the framers of the Constitution intended that these
'independent' bodies be insulated from political pressure to the extent that the absence
of 'independence' would result in the impairment of their core functions" [163];
(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional
offices allocate and utilize the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only [of] the express mandate of the Constitution, but
especially as regards the Supreme Court, of the independence and separation of powers
upon which the entire fabric of our constitutional system is based"; [164] and
(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for

independence. In the deliberations of the 1973 Constitution, the delegates amended the
1935 Constitution by providing for a constitutionally-created Civil Service Commission,
instead of one created by law, on the premise that the effectivity of this body is
dependent on its freedom from the tentacles of politics. In a similar manner, the
deliberations of the 1987 Constitution on the Commission on Audit highlighted the
developments in the past Constitutions geared towards insulating the Commission on
Audit from political pressure."[165]
At bottom, the decisive ruling in Gonzales III, however, was that the independence of the
Office of the Ombudsman, as well as that of the foregoing independent bodies, meant
freedom from control or supervision of the Executive Department:
[T]he independent constitutional commissions have been consistently intended by the
framers to be independent from executive control or supervision or any form of
political influence. At least insofar as these bodies are concerned, jurisprudence is not
scarce on how the "independence" granted to these bodies prevents presidential
interference.
In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we
emphasized that the Constitutional Commissions, which have been characterized under the
Constitution as "independent," are not under the control of the President, even if they
discharge functions that are executive in nature. The Court declared as unconstitutional the
President's act of temporarily appointing the respondent in that case as Acting Chairman of
the [Commission on Elections] "however well-meaning" it might have been.
In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated
that the tenure of the commissioners of the independent Commission on Human
Rights could not be placed under the discretionary power of the President.
x x x x
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be
inferior - but is similar in degree and kind - to the independence similarly guaranteed by the
Constitution to the Constitutional Commissions since all these offices fill the political
Josef Elvin Campos
interstices of a republican democracy that are crucial to its existence and proper
functioning.[166] (Emphases and underscoring supplied)
Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a]
Deputy or the Special Prosecutor, may be removed from office by the President for any of
the grounds provided for the removal of the Ombudsman, and after due process," partially
unconstitutional insofar as it subjected the Deputy Ombudsman to the disciplinary authority
of the President for violating the principle of independence. Meanwhile, the validity of
Section 8 (2), RA 6770 was maintained insofar as the Office of the Special Prosecutor was
concerned since said office was not considered to be constitutionally within the Office of the
Ombudsman and is, hence, not entitled to the independence the latter enjoys under the
Constitution.[167]
As may be deduced from the various discourses in Gonzales III, the concept of
Ombudsman's independence covers three (3) things:
First: creation by the Constitution, which means that the office cannot be abolished, nor
its constitutionally specified functions and privileges, be removed, altered, or modified by
law, unless the Constitution itself allows, or an amendment thereto is made;
Second: fiscal autonomy, which means that the office "may not be obstructed from [its]
freedom to use or dispose of [its] funds for purposes germane to [its] functions; [168] hence, its
budget cannot be strategically decreased by officials of the political branches of government
so as to impair said functions; and
Third: insulation from executive supervision and control, which means that those within
the ranks of the office can only be disciplined by an internal authority.
Evidently, all three aspects of independence intend to protect the Office of the Ombudsman
from political harassment and pressure, so as to free it from the "insidious tentacles of
politics."[169]
That being the case, the concept of Ombudsman independence cannot be invoked as basis
to insulate the Ombudsman from judicial power constitutionally vested unto the courts.
Courts are apolitical bodies, which are ordained to act as impartial tribunals and apply even
justice to all. Hence, the Ombudsman's notion that it can be exempt from an incident of
judicial power - that is, a provisional writ of injunction against a preventive suspension order
- clearly strays from the concept's rationale of insulating the office from political harassment
or pressure.
B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the
Court under the 1987 Constitution.
The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it

remains that the first paragraph of Section 14, RA 6770 textually prohibits courts from
extending provisional injunctive relief to delay any investigation conducted by her office.
Despite the usage of the general phrase "[n]o writ of injunction shall be issued by any
court," the Ombudsman herself concedes that the prohibition does not cover the Supreme
Court.[170] As support, she cites the following Senate deliberations:
Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is
necessary. I would just like to inquire for the record whether below the Supreme
Court, it is understood that there is no injunction policy against the Ombudsman by
lower courts. Or, is it necessary to have a special paragraph for that?
Senator Angara. Well, there is no provision here, Mr. President, that will prevent an
injunction against the Ombudsman being issued.
Senator Maceda. In which case, I think that the intention, this being one of the
highest constitutional bodies, is to subject this only to certiorari to the Supreme
Court. I think an injunction from the Supreme Court is, of course, in order but no
lower courts should be allowed to interfere. We had a very bad experience with even,
let us say, the Forestry Code where no injunction is supposed to be issued against the
Josef Elvin Campos
Department of Natural Resources. Injunctions are issued right and left by RTC judges
all over the country.
The President. Why do we not make an express provision to that effect?
Senator Angara. We would welcome that, Mr. President.
The President. No [writs of injunction] from the trial courts other than the Supreme
Court.
Senator Maceda. I so move, Mr. President, for that amendment.
The President. Is there any objection? [Silence] Hearing none, the same is approved.[171]
Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987
Constitution, acts of the Ombudsman, including interlocutory orders, are subject to the
Supreme Court's power of judicial review As a corollary, the Supreme Court may issue
ancillary mjunctive writs or provisional remedies in the exercise of its power of judicial
review over matters pertaining to ongoing investigations by the Office of the Ombudsman.
Respecting the CA, however, the Ombudsman begs to differ. [172]
With these submissions, it is therefore apt to examine the validity of the first paragraph of
Section 14, RA 6770 insofar as it prohibits all courts, except this Court, from issuing
provisional writs of injunction to enjoin an Ombudsman investigation. That the
constitutionality of this provision is the lis mota of this case has not been seriously disputed.
In fact, the issue anent its constitutionality was properly raised and presented during the
course of these proceedings.[173] More importantly, its resolution is clearly necessary to the
complete disposition of this case. [174]
In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),

[175]
the "Constitution has blocked out with deft strokes and in bold lines, allotment of power
to the executive, the legislative[,] and the judicial departments of the government." [176] The
constitutional demarcation of the three fundamental powers of government is more
commonly known as the principle of separation of powers. In the landmark case of Belgica
v. Ochoa, Jr. (Belgica),[177] the Court held that "there is a violation of the separation of
powers principle when one branch of government unduly encroaches on the domain of
another."[178] In particular, "there is a violation of the principle when there is impermissible (a)
interference with and/or (b) assumption of another department's functions." [179]
Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the
Supreme Court and all such lower courts:
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.
This Court is the only court established by the Constitution, while all other lower courts
may be established by laws passed by Congress. Thus, through the passage of Batas
Pambansa Bilang (BP) 129,[180] known as "The Judiciary Reorganization Act of 1980," the
Court of Appeals,[181] the Regional Trial Courts,[182] and the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts [183] were established. Later,
through the passage of RA 1125,[184] and Presidential Decree No. (PD) 1486, [185] the Court of
Tax Appeals, and the Sandiganbayan were respectively established.
In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define, prescribe, and apportion the
jurisdiction of all courts, except that it may not deprive the Supreme Court of its
jurisdiction over cases enumerated in Section 5[186] of the same Article:
Section 2. The Congress shall have the power to define, prescribe, ' and apportion the
jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction
Josef Elvin Campos
over cases enumerated in Section 5 hereof.
xxxx
Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject
matter of an action. In The Diocese of Bacolod v. Commission on Elections,[187] subject
matter jurisdiction was defined as "the authority 'to hear and determine cases of the
general class to which the proceedings in question belong and is conferred by the
sovereign authority which organizes the court and defines its powers.'"
Among others, Congress defined, prescribed, and apportioned the subject matter
jurisdiction of this Court (subject to the aforementioned constitutional limitations), the Court
of Appeals, and the trial courts, through the passage of BP 129, as amended.
In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main
petition for certiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as
amended:
Section 9. Jurisdiction. - The Court of Appeals shall exercise:
1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid
of its appellate jurisdiction[.]
Note that the CA's certiorari jurisdiction, as above-stated, is not only original but

also concurrent with the Regional Trial Courts (under Section 21 (1), Chapter II of BP 129),
and the Supreme Court (under Section 5, Article VIII of the 1987 Philippine Constitution). In
view of the concurrence of these courts' jurisdiction over petitions for certiorari, the doctrine
of hierarchy of courts should be followed. In People v. Cuaresma,[188] the doctrine was
explained as follows:
[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking
any of the writs an absolute, unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all a hierarchy of courts. That hierarchy
is determinative of the venue of appeals, and should also serve as a general determinant of
the appropriate forum for petitions for the extraordinary writs. A becoming regard for that
judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary
writs against first level ("inferior") courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. [189]
When a court has subject matter jurisdiction over a particular case, as conferred unto it

by law, said court may then exercise its jurisdiction acquired over that case, which is
called judicial power.
Judicial power, as vested in the Supreme Court and all other courts established by law,
has been defined as the "totality of powers a court exercises when it assumes
jurisdiction and hears and decides a case."[190] Under Section 1, Article VIII of the 1987
Constitution, it includes "the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government."
In Oposa v. Factoran, Jr.[191] the Court explained the expanded scope of judicial power
under the 1987 Constitution:
The first part of the authority represents the traditional concept of judicial power, involving
the settlement of conflicting rights as conferred by law. The second part of the authority
represents a broadening of f judicial power to enable the courts of justice to review what
was before forbidden territory, to wit, the discretion of the political departments of the
government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature
and to declare their acts invalid for lack or excess of jurisdiction because they are tainted
with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of
Josef Elvin Campos
discretion," which is a very elastic phrase that can expand or contract according to the
disposition of the judiciary.[192]
Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it

has acquired over a particular case conforms to the limits and parameters of the
rules of procedure duly promulgated by this Court. In other words, procedure is the
framework within which judicial power is exercised. In Manila Railroad Co. v. Attorney-
General,[193] the Court elucidated that "[t]he power or authority of the court over the subject
matter existed and was fixed before procedure in a given cause began. Procedure does
not alter or change that power or authority; it simply directs the manner in which it
shall be fully and justly exercised. To be sure, in certain cases, if that power is not
exercised in conformity with the provisions of the procedural law, purely, the court
attempting to exercise it loses the power to exercise it legally. This does not mean that it
loses jurisdiction of the subject matter." [194]
While the power to define, prescribe, and apportion the jurisdiction of the various courts is,
by constitutional design, vested unto Congress, the power to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts belongs exclusively to this Court. Section 5 (5),
Article VIII of the 1987 Constitution reads:
Section 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional

rights, pleading, practice, and procedure in all courts, the admission to the practice of
law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court. (Emphases and underscoring
supplied)
In Echegaray v. Secretary of Justice[195] (Echegaray), the Court traced the evolution of its

rule-making authority, which, under the 1935 [196] and 1973 Constitutions,[197] had been priorly
subjected to a power-sharing scheme with Congress. [198] As it now stands, the 1987
Constitution textually altered the old provisions by deleting the concurrent power of
Congress to amend the rules, thus solidifying in one body the Court's rule-making
powers, in line with the Framers' vision of institutionalizing a "[s]tronger and more
independent judiciary."[199]
The records of the deliberations of the Constitutional Commission would show [200] that the
Framers debated on whether or not the Court's rule-making powers should be shared with
Congress. There was an initial suggestion to insert the sentence "The National Assembly
may repeal, alter, or supplement the said rules with the advice and concurrence of the
Supreme Court", right after the phrase "Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal assistance to the
underprivileged" in the enumeration of powers of the Supreme Court. Later, Commissioner
Felicitas S. Aquino proposed to delete the former sentence and, instead, after the word
"[underprivileged," place a comma (,) to be followed by "the phrase with the concurrence of
the National Assembly." Eventually, a compromise formulation was reached wherein (a) the
Committee members agreed to Commissioner Aquino's proposal to delete the phrase "the
National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino agreed to
withdraw his proposal to add "the phrase with the concurrence of the National
Assembly." The changes were approved, thereby leading to the present lack of textual
reference to any form of Congressional participation in Section 5 (5), Article
VIII, supra. The prevailing consideration was that "both bodies, the Supreme Court
and the Legislature, have their inherent powers."[201]
Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules
concerning pleading, practice, and procedure. As pronounced in Echegaray:
Josef Elvin Campos
The rule making power of this Court was expanded. This Court for the first time was given
the power to promulgate rules concerning the protection and enforcement of constitutional
rights. The Court was also r granted for the first time the power to disapprove rules of
procedure of special courts and quasi-judicial bodies. But most importantly, the 1987
Constitution took away the power of Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure. In fine, the power to promulgate rules
of pleading, practice and procedure is no longer shared by this Court with Congress,
more so with the Executive.[202] (Emphasis and underscoring supplied)
Under its rule-making authority, the Court has periodically passed various rules of
procedure, among others, the current 1997 Rules of Civil Procedure. Identifying the
appropriate procedural remedies needed for the reasonable exercise of every court's
judicial power, the provisional remedies of temporary restraining orders and writs of
preliminary injunction were thus provided.
A temporary restraining order and a writ of preliminary injunction both constitute temporary
measures availed of during the pendency of the action. They are, by nature, ancillary
because they are mere incidents in and are dependent upon the result of the main action. It
is well-settled that the sole object of a temporary restraining order or a writ of
preliminary injunction, whether prohibitory or mandatory, is to preserve the status
quo[203] until the merits of the case can be heard. They are usually granted when it is made
to appear that there is a substantial controversy between the parties and one of them is
committing an act or threatening the immediate commission of an act that will cause
irreparable injury or destroy the status quo of the controversy before a full hearing can be
had on the merits of the case. In other words, they are preservative remedies for the
protection of substantive rights or interests, and, hence, not a cause of action in itself, but
merely adjunct to a main suit.[204] In a sense, they are regulatory processes meant to prevent
a case from being mooted by the interim acts of the parties.
Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of
a TRO and a WPI. A preliminary injunction is defined under Section 1, [205] Rule 58, while
Section 3[206] of the same Rule enumerates the grounds for its issuance. Meanwhile, under
Section 5[207] thereof, a TRO may be issued as a precursor to the issuance of a writ of
preliminary injunction under certain procedural parameters.
The power of a court to issue these provisional injunctive reliefs coincides with its inherent
power to issue all auxiliary writs, processes, and other means necessary to carry its
acquired jurisdiction into effect under Section 6, Rule 135 of the Rules of Court which
reads:
Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a
court or judicial officer, all auxiliary writs, f processes and other means necessary to carry it
into effect may be employed by such court or officer; and if the procedure to be followed in
the exercise of such jurisdiction is not specifically pointed out by law [208] or by these rules,
any suitable process or mode of proceeding may be adopted which appears comfortable to
the spirit of the said law or rules.
In City of Manila v. Grecia-Cuerdo, [209] which is a case involving "[t]he supervisory power or

jurisdiction of the [Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate
jurisdiction"[210] over "decisions, orders or resolutions of the RTCs in local tax cases
originally decided or resolved by them in the exercise of their original or appellate
jurisdiction,"[211] the Court ruled that said power "should coexist with, and be a complement
to, its appellate jurisdiction to review, by appeal, the final orders and decisions of the RTC,
in order to have complete supervision over the acts of the latter:" [212]
A grant of appellate jurisdiction implies that there is included in it the power necessary to
exercise it effectively, to make all orders that ; will preserve the subject of the action,
and to give effect to the final determination of the appeal. It carries with it the power to
protect that jurisdiction and to make the decisions of the court thereunder effective. The
court, in aid of its appellate jurisdiction, has authority to control all auxiliary and incidental
matters necessary to the efficient and proper exercise of that jurisdiction. For this purpose, it
may, when necessary, prohibit or restrain the performance of any act which might interfere
with the proper exercise of its rightful jurisdiction in cases pending before it. [213] (Emphasis
supplied)
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In this light, the Court expounded on the inherent powers of a court endowed with subject
matter jurisdiction:
[A] court which is endowed with a particular jurisdiction should have powers which are
necessary to enable it to act effectively within such jurisdiction. These should be regarded
as powers which are inherent in its jurisdiction and the court must possess them in
order to enforce its rules of practice and to suppress any abuses of its process and
to t defeat any attempted thwarting of such process.
x x x x
Indeed, courts possess certain inherent powers which may be said to be implied from a

general grant of jurisdiction, in addition to those expressly conferred on them. These
inherent powers are such powers as are necessary for the ordinary and efficient
exercise of jurisdiction; or are essential to the existence, dignity and functions of the
courts, as well as to the due administration of justice; or are directly appropriate,
convenient and suitable to the execution of their granted powers; and include the
power to maintain the court's jurisdiction and render it effective in behalf of the
litigants.[214] (Emphases and underscoring supplied)
Broadly speaking, the inherent powers of the courts resonates the long-entrenched
constitutional principle, articulated way back in the 1936 case of Angara, that "where a
general power is conferred or duty enjoined, every particular power necessary for the
exercise of the one or the performance of the other is also conferred." [215]
In the United States, the "inherent powers doctrine refers to the principle, by which the
courts deal with diverse matters over which they are thought to have intrinsic authority like
procedural [rule-making] and general judicial housekeeping. To justify the invocation or
exercise of inherent powers, a court must show that the powers are reasonably
necessary to achieve the specific purpose for which the exercise is sought. Inherent
powers enable the judiciary to accomplish its constitutionally mandated
functions."[216]
In Smothers v. Lewis[217] (Smothers), a case involving the constitutionality of a statute which

prohibited courts from enjoining the enforcement of a revocation order of an alcohol
beverage license pending appeal,[218] the Supreme Court of Kentucky held:
[T]he Court is x x x vested with certain "inherent" powers to do that which is
reasonably necessary for the administration of justice within the scope of their
jurisdiction. x x x [W]e said while considering the rule making power and the judicial power
to be one and the same that ". . . the grant of judicial power [rule making power] to the
courts by the constitution carries with it, as a necessary incident, the right to make
that power effective in the administration of justice." (Emphases supplied)
Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an

exercise of the court's inherent power, and to this end, stated that any attempt on the part of
Congress to interfere with the same was constitutionally impermissible:
It is a result of this foregoing line of thinking that we now adopt the language framework of
28 Am.Jur.2d, Injunctions, Section 15, and once and for all make clear that a court, once
having obtained jurisdiction of a cause of action, has, as an incidental to its constitutional
grant of power, inherent power to do all things reasonably necessary to the administration of
justice in the case before it. In the exercise of this power, a court, when necessary in
order to protect or preserve the subject matter of the litigation, to protect its
jurisdiction and to make its judgment effective, may grant or issue a temporary
injunction in aid of or ancillary to the principal action.
The control over this inherent judicial power, in this particular instance the
injunction, is exclusively within the constitutional realm of the courts. As such, it is
not within the purview of the legislature to grant or deny the power nor is it within the
purview of the legislature to shape or fashion circumstances under which this
inherently judicial power may be or may not be granted or denied.
This Court has historically recognized constitutional limitations upon the power of the
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legislature to interfere with or to inhibit the performance of constitutionally granted and
inherently provided judicial functions, x x x
xxxx
We reiterate our previously adopted language, ". . . a court, once having obtained
jurisdiction of a cause of action, has, as incidental to its general jurisdiction, inherent power
to do all things reasonably necessary f to the administration of justice in the case before
it. . ." This includes the inherent power to issue injunctions. (Emphases supplied)
Smothers also pointed out that the legislature's authority to provide a right to appeal in the
statute does not necessarily mean that it could control the appellate judicial proceeding:
However, the fact that the legislature statutorily provided for this appeal does not give it the
right to encroach upon the constitutionally granted powers of the judiciary. Once the
administrative action has ended and the right to appeal arises the legislature is void
of any right to control a subsequent appellate judicial proceeding. The judicial rules
have come into play and have preempted the field. [219] (Emphasis supplied)
With these considerations in mind, the Court rules that when Congress passed the first
paragraph of Section 14, RA 6770 and, in so doing, took away from the courts their power
to issue a TRO and/or WPI to enjoin an investigation conducted by the Ombudsman, it
encroached upon this Court's constitutional rule-making authority. Clearly, these issuances,
which are, by nature, provisional reliefs and auxiliary writs created under the provisions of
the Rules of Court, are matters of procedure which belong exclusively within the province
of this Court. Rule 58 of the Rules of Court did not create, define, and regulate a right but
merely prescribed the means of implementing an existing right [220] since it only provided for
temporary reliefs to preserve the applicant's right in esse which is threatened to be violated
during the course of a pending litigation. In the case of Fabian,[221] it was stated that:
If the rule takes away a vested right, it is not procedural. If the rule creates a right such as
the right to appeal, it may be classified as a substantive matter; but if it operates as a
means of implementing an existing right then the rule deals merely with procedure.
Notably, there have been similar attempts on the part of Congress, in the exercise of its
legislative power, to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of
The National Power Corporation from Payment of Filing/ Docket Fees;[222] (b) Re: Petition
for Recognition of the Exemption of the Government Service Insurance System (GSIS) from
Payment of Legal Fees;[223] and (c) Baguio Market Vendors Multi-Purpose Cooperative
(BAMARVEMPCO) v. Cabato-Cortes[224] While these cases involved legislative enactments
exempting government owned and controlled corporations and cooperatives from paying
filing fees, thus, effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it
was, nonetheless, ruled that the prerogative to amend, repeal or even establish new
rules of procedure[225] solely belongs to the Court, to the exclusion of the legislative
and executive branches of government. On this score, the Court described its authority
to promulgate rules on pleading, practice, and procedure as exclusive and "[o]ne of the
safeguards of [its] institutional independence."[226]
That Congress has been vested with the authority to define, prescribe, and apportion the
jurisdiction of the various courts under Section 2, Article VIII supra, as well as to create
statutory courts under Section 1, Article VIII supra, does not result in an abnegation of the
Court's own power to promulgate rules of pleading, practice, and procedure under Section 5
(5), Article VIII supra. Albeit operatively interrelated, these powers are nonetheless
institutionally separate and distinct, each to be preserved under its own sphere of
authority. When Congress creates a court and delimits its jurisdiction, the procedure
for which its jurisdiction is exercised is fixed by the Court through the rules it
promulgates. The first paragraph of Section 14, RA 6770 is not a jurisdiction-vesting
provision, as the Ombudsman misconceives,[227] because it does not define, prescribe, and
apportion the subject matter jurisdiction of courts to act on certiorari cases;
the certiorari jurisdiction of courts, particularly the CA, stands under the relevant sections of
BP 129 which were not shown to have been repealed. Instead, through this
provision, Congress interfered with a provisional remedy that was created by this
Court under its duly promulgated rules of procedure, which utility is both integral
and inherent to every court's exercise of judicial power. Without the Court's consent
to the proscription, as may be manifested by an adoption of the same as part of the
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rules of procedure through an administrative circular issued therefor, there thus,
stands to be a violation of the separation of powers principle.
In addition, it should be pointed out that the breach of Congress in prohibiting provisional
injunctions, such as in the first paragraph of Section 14, RA 6770, does not only undermine
the constitutional allocation of powers; it also practically dilutes a court's ability to carry
out its functions. This is so since a particular case can easily be mooted by
supervening events if no provisional injunctive relief is extended while the court is
hearing the same. Accordingly, the court's acquired jurisdiction, through which it exercises
its judicial power, is rendered nugatory. Indeed, the force of judicial power, especially under
the present Constitution, cannot be enervated due to a court's inability to regulate what
occurs during a proceeding's course. As earlier intimated, when jurisdiction over the subject
matter is accorded by law and has been acquired by a court, its exercise thereof should be
undipped. To give true meaning to the judicial power contemplated by the Framers of our
Constitution, the Court's duly promulgated rules of procedure should therefore remain
unabridged, this, even by statute. Truth be told, the policy against provisional injunctive
writs in whatever variant should only subsist under rules of procedure duly promulgated by
the Court given its sole prerogative over the same.
The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice
Leonen) and the Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay)
mirrors the foregoing observations:
JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?
ACTING SOLICITOR GENERAL HILBAY:

Rule 58, Your Honor.
JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken
under the rubric of what is called provisional remedies, our resident expert because Justice
Peralta is not here so Justice Bersamin for a while. So provisional remedy you have
injunction, x x x.
xxxx
JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the
Constitution, if you have a copy of the Constitution, can you please read that provision?
Section 5, Article VIII the Judiciary subparagraph 5, would you kindly read that provision?
ACTING SOLICTOR GENERAL HILBAY.

"Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice and procedure in all courts..."
JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure
in all courts. This is the power, the competence, the jurisdiction of what constitutional
organ?

The Supreme Court, Your Honor.
JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already
been discussed with you by my other colleagues, is that not correct?

Correct, Your Honor.
JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not
correct?
Josef Elvin Campos
JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?

JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of
litigation in an ordinary case?

It is an ancillary remedy, Your Honor.
JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?

JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of litigation, it will not be
rendered moot and academic, is that not correct?

JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?

No, Your Honor.
xxxx
JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?

Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.
JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the power to issue
the supplemental pleading called the bill of t particular [s]? It cannot, because that's part of
procedure...

That is true.
JUSTICE LEONEN
...or for that matter, no Court shall act on a Motion to Quash, is that not correct?

Correct.
JUSTICE LEONEN:
So what's different with the writ of injunction?

Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court
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that was created by Congress. In the absence of jurisdiction... (interrupted)
JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special
agrarian court it has all procedures with it but it does not attach particularly to that particular
court, is that not correct?
ACTING SOLICTOR GENERAL HILBAY:

When Congress, Your Honor, creates a special court...
JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a
Rule. A rule of procedure and the Rules of Court, is that not correct?

Yes, Your Honor.
JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a
particular injunction in a court, is that not correct?

xxxx[228] (Emphasis supplied)
In Biraogo v. The Philippine Truth Commission of 2010, [229] the Court instructed that "[i]t is
through the Constitution that the fundamental powers of government are established, limited
and defined, and by which these powers are distributed among the several departments.
The Constitution is the basic and paramount law to which all other laws must conform and
to which all persons, including the highest officials of the land, must defer." It would then
follow that laws that do not conform to the Constitution shall be stricken down for being
unconstitutional.[230]
However, despite the ostensible breach of the separation of powers principle, the Court is
not oblivious to the policy considerations behind the first paragraph of Section 14, RA 6770,
as well as other statutory provisions of similar import. Thus, pending deliberation on
whether or not to adopt the same, the Court, under its sole prerogative and authority over all
matters of procedure, deems it proper to declare as ineffective the prohibition against courts
other than the Supreme Court from issuing provisional injunctive writs to enjoin
investigations conducted by the Office of the Ombudsman, until it is adopted as part of the
rules of procedure through an administrative circular duly issued therefor.
Hence, with Congress interfering with matters of procedure (through passing the first
paragraph of Section 14, RA 6770) without the Court's consent thereto, it remains that the
CA had the authority to issue the questioned injunctive writs enjoining the implementation of
the preventive suspension order against Binay, Jr. At the risk of belaboring the point, these
issuances were merely ancillary to the exercise of the CA's certiorari jurisdiction conferred
to it under Section 9 (1), Chapter I of BP 129, as amended, and which it had already
acquired over the main CA-G.R. SP No. 139453 case.
IV.
The foregoing notwithstanding, the issue of whether or not the CA gravely abused its
jurisdiction in issuing the TRO and WPI in CA-G.R. SP No. 139453 against the preventive
suspension order is a persisting objection to the validity of said injunctive writs. For its
proper analysis, the Court first provides the context of the assailed injunctive writs.
A. Subject matter of the CA's iniunctive writs is the preventive suspension order.
By nature, a preventive suspension order is not a penalty but only a preventive

measure. In Quimbo v. Acting Ombudsman Gervacio, [231] the Court explained the
distinction, stating that its purpose is to prevent the official to be suspended from
using his position and the powers and prerogatives of his office to influence
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potential witnesses or tamper with records which may be vital in the prosecution of
the case against him:
Jurisprudential law establishes a clear-cut distinction between suspension as preventive
measure and suspension as penalty. The distinction, by considering the purpose aspect of
the suspensions, is readily cognizable as they have different ends sought to be achieved.
Preventive suspension is merely a preventive measure, a preliminary step in an

administrative investigation. The purpose of the suspension order is to prevent the
accused from using his position and the powers and prerogatives of his office to
influence potential witnesses or tamper with records which may be vital in the
prosecution of the case against him. If after such investigation, the charge is established
and the person investigated is found guilty of acts warranting his suspension or removal,
then he is suspended, removed or dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of

Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987
(Executive Order No. 292) and other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office
but is considered to be a preventive measure. (Emphasis supplied)
Not being a penalty, the period within which one is under preventive suspension is not
considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV
provides:
Section 25. The period within which a public officer or employee charged is placed under
preventive suspension shall not be considered part of the actual penalty of
suspension imposed upon the employee found guilty.[232] (Emphases supplied)
The requisites for issuing a preventive suspension order are explicitly stated in Section 24,
RA 6770:
Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided. (Emphasis and underscoring supplied)
In other words, the law sets forth two (2) conditions that must be satisfied to justify the
issuance of an order of preventive suspension pending an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with the first requirement:
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty;
(b) The charge would warrant removal from the service; or
(c) The respondent's continued stay in office may prejudice the case filed against him. [233]
B. The basis of the CA's injunctive writs is the condonation doctrine.
Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the
Ombudsman's non-compliance with the requisites provided in Section 24, RA 6770 was not
the basis for the issuance of the assailed injunctive writs.
The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was
based on the case of Governor Garcia, Jr. v. CA[234] (Governor Garcia, Jr.), wherein the
Court emphasized that "if it were established in the CA that the acts subject of the
administrative complaint were indeed committed during petitioner [Garcia's] prior term, then,
Josef Elvin Campos
following settled jurisprudence, he can no longer be administratively charged." [235] Thus, the
Court, contemplating the application of the condonation doctrine, among others, cautioned,
in the said case, that "it would have been more prudent for [the appellate court] to have, at
the very least, on account of the extreme urgency of the matter and the seriousness of the
issues raised in the certiorari petition, issued a TRO x x x"[236] during the pendency of the
proceedings.
Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI
was based on the condonation doctrine, citing the case of Aguinaldo v. Santos[237] The CA
held that Binay, Jr. has an ostensible right to the final relief prayed for, i.e., the nullification
of the preventive suspension order, finding that the Ombudsman can hardly impose
preventive suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of
Makati condoned any administrative liability arising from anomalous activities relative to the
Makati Parking Building project from 2007 to 2013. [238] Moreover, the CA observed that
although there were acts which were apparently committed by Binay, Jr. beyond his first
term , i.e., the alleged payments on July 3, 4, and 24, 2013, [239] corresponding to the
services of Hillmarc's and MANA - still, Binay, Jr. cannot be held administratively liable
therefor based on the cases of Salalima v. Guingona, Jr.,[240] and Mayor Garcia v.
Mojica,[241] wherein the condonation dobtrine was applied by the Court although the
payments were made after the official's election, reasoning that the payments were merely
effected pursuant to contracts executed before said re-election. [242]
The Ombudsman contends that it was inappropriate for the CA to have considered the
condonation doctrine since it was a matter of defense which should have been raised and
passed upon by her office during the administrative disciplinary proceedings. [243] However,
the Court agrees with the CA that it was not precluded from considering the same given that
it was material to the propriety of according provisional injunctive relief in conformity with the
ruling in Governor Garcia, Jr., which was the subsisting jurisprudence at that time. Thus,
since condonation was duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453,
[244]
the CA did not err in passing upon the same. Note that although Binay, Jr. secondarily
argued that the evidence of guilt against him was not strong in his petition in CA-G.R. SP
No. 139453,[245] it appears that the CA found that the application of the condonation doctrine
was already sufficient to enjoin the implementation of the preventive suspension order.
Again, there is nothing aberrant with this since, as remarked in the same case of Governor
Garcia, Jr., if it was established that the acts subject of the administrative complaint were
indeed committed during Binay, Jr.'s prior term, then, following the condonation doctrine, he
can no longer be administratively charged. In other words, with condonation having been
invoked by Binay, Jr. as an exculpatory affirmative defense at the onset, the CA deemed it
unnecessary to determine if the evidence of guilt against him was strong, at least for the
purpose of issuing the subject injunctive writs.
With the preliminary objection resolved and the basis of the assailed writs herein laid down,
the Court now proceeds to determine if the CA gravely abused its discretion in applying the
condonation doctrine.
C. The origin of the condonation doctrine.
Generally speaking, condonation has been defined as "[a] victim's express or implied
forgiveness of an offense, [especially] by treating the offender as if there had been no
offense."[246]
The condonation doctrine - which connotes this same sense of complete extinguishment of
liability as will be herein elaborated upon - is not based on statutory law. It is a
jurisprudential creation that originated from the 1959 case of Pascual v. Hon. Provincial
Board of Nueva Ecija,[247] (Pascual), which was therefore decided under the 1935
Constitution.
In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija,
sometime in November 1951, and was later re-elected to the same position in 1955. During
his second term, or on October 6, 1956, the Acting Provincial Governor
filed administrative charges before the Provincial Board of Nueva Ecija against him for
grave abuse of authority and usurpation of judicial functions for acting on a criminal
complaint in Criminal Case No. 3556 on December 18 and 20, 1954. In defense, Arturo
Josef Elvin Campos
Pascual argued that he cannot be made liable for the acts charged against him since they
were committed during his previous term of office, and therefore, invalid grounds for
disciplining him during his second term. The Provincial Board, as well as the Court of First
Instance of Nueva Ecija, later decided against Arturo Pascual, and when the case reached
this Court on appeal, it recognized that the controversy posed a novel issue - that is,
whether or not an elective official may be disciplined for a wrongful act committed by him
during his immediately preceding term of office.
As there was no legal precedent on the issue at that time, the Court,
in Pascual, resorted to American authorities and "found that cases on the matter are
conflicting due in part, probably, to differences in statutes and constitutional provisions, and
also, in part, to a divergence of views with respect to the question of whether the
subsequent election or appointment condones the prior misconduct." [248] Without going
into the variables of these conflicting views and cases, it proceeded to state that:
The weight of authorities x x x seems to incline toward the rule denying the right to
remove one from office because of misconduct during a prior term, to which we fully
subscribe.[249] (Emphasis and underscoring supplied)
The conclusion is at once problematic since this Court has now uncovered that there is
really no established weight of authority in the United States (US) favoring the doctrine of
condonation, which, in the words of Pascual, theorizes that an official's re-election denies
the right to remove him from office due to a misconduct during a prior term. In fact, as
pointed out during the oral arguments of this case, at least seventeen (17) states in the US
have abandoned the condonation doctrine.[250] The Ombudsman aptly cites several rulings
of various US State courts, as well as literature published on the matter, to demonstrate the
fact that the doctrine is not uniformly applied across all state jurisdictions. Indeed, the
treatment is nuanced:
(1) For one, it has been widely recognized that the propriety of removing a public officer
from his current term or office for misconduct which he allegedly committed in a prior term
of office is governed by the language of the statute or constitutional provision applicable to
the facts of a particular case (see In Re Removal of Member of Council Coppola).[251] As an
example, a Texas statute, on the one hand, expressly allows removal only for an act
committed during a present term: "no officer shall be prosecuted or removed from office for
any act he may have committed prior to his election to office" (see State ex rel. Rowlings v.
Loomis).[252] On the other hand, the Supreme Court of Oklahoma allows removal from office
for "acts of commission, omission, or neglect committed, done or omitted during a previous
or preceding term of office" (see State v. Bailey)[253] Meanwhile, in some states where the
removal statute is silent or unclear, the case's resolution was contingent upon the
interpretation of the phrase "in office." On one end, the Supreme Court of Ohio strictly
construed a removal statute containing the phrase "misfeasance of malfeasance in office"
and thereby declared that, in the absence of clear legislative language making, the word
"office" must be limited to the single term during which the offense charged against the
public officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga County)
[254]
Similarly, the Common Pleas Court of Allegheny County, Pennsylvania decided that the
phrase "in office" in its state constitution was a time limitation with regard to the grounds of
removal, so that an officer could not be removed for misbehaviour which occurred; prior to
the taking of the office (see Commonwealth v. Rudman)[255] The opposite was construed in
the Supreme Court of Louisiana which took the view that an officer's inability to hold an
office resulted from the commission of certain offenses, and at once rendered him unfit to
continue in office, adding the fact that the officer had been re-elected did not condone or
purge the offense (see State ex rel. Billon v. Bourgeois).[256] Also, in the Supreme Court of
New York, Apellate Division, Fourth Department, the court construed the words "in office" to
refer not to a particular term of office but to an entire tenure; it stated that the whole purpose
of the legislature in enacting the statute in question could easily be lost sight of, and the
intent of the law-making body be thwarted, if an unworthy official could not be removed
during one term for misconduct for a previous one (Newman v. Strobel).[257]
(2) For another, condonation depended on whether or not the public officer was a successor
in the same office for which he has been administratively charged. The "own-successor
theory," which is recognized in numerous States as an exception to condonation doctrine, is
premised on the idea that each term of a re-elected incumbent is not taken as separate and
distinct, but rather, regarded as one continuous term of office. Thus, infractions committed
Josef Elvin Campos
in a previous term are grounds for removal because a re-elected incumbent has no prior
term to speak of[258] (see Attorney-General v. Tufts;[259] State v. Welsh;[260] Hawkins v.
Common Council of Grand Rapids;[261] Territory v. Sanches;[262] and Tibbs v. City of Atlanta).
[263]
(3) Furthermore, some State courts took into consideration the continuing nature of an
offense in cases where the condonation doctrine was invoked. In State ex rel. Douglas v.
Megaarden,[264] the public officer charged with malversation of public funds was denied the
defense of condonation by the Supreme Court of Minnesota, observing that "the large sums
of money illegally collected during the previous years are still retained by him." In State ex
rel. Beck v. Harvey[265] the Supreme Court of Kansas ruled that "there is no necessity" of
applying the condonation doctrine since "the misconduct continued in the present term of
office[;] [thus] there was a duty upon defendant to restore this money on demand of the
county commissioners." Moreover, in State ex rel. Londerholm v. Schroeder, [266] the
Supreme Court of Kansas held that "insofar as nondelivery and excessive prices are
concerned, x x x there remains a continuing duty on the part of the defendant to make
restitution to the country x x x, this duty extends into the present term, and neglect to
discharge it constitutes misconduct."
Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that
there is a "weight of authority" in the US on the condonation doctrine. In fact, without any
cogent exegesis to show that Pascual had accounted for the numerous factors relevant to
the debate on condonation, an outright adoption of the doctrine in this jurisdiction would not
have been proper.
At any rate, these US cases are only of persuasive value in the process of this Court's
decision-making. "[They] are not relied upon as precedents, but as guides of
interpretation."[267] Therefore, the ultimate analysis is on whether or not the condonation
doctrine, as espoused in Pascual, and carried over in numerous cases after, can be held up
against prevailing legal norms. Note that the doctrine of stare decisis does not preclude this
Court from revisiting existing doctrine. As adjudged in the case of Belgica, the stare
decisis rule should not operate when there are powerful countervailing considerations
against its application.[268] In other words, stare decisis becomes an intractable rule only
when circumstances exist to preclude reversal of standing precedent. [269] As the
Ombudsman correctly points out, jurisprudence, after all, is not a rigid, atemporal
abstraction; it is an organic creature that develops and devolves along with the society
within which it thrives.[270] In the words of a recent US Supreme Court Decision, "[w]hat we
can decide, we can undecide." [271]
In this case, the Court agrees with the Ombudsman that since the time Pascual was
decided, the legal landscape has radically shifted. Again, Pascual was a 1959 case decided
under the 1935 Constitution, which dated provisions do not reflect the experience of the
Filipino People under the 1973 and 1987 Constitutions. Therefore, the plain difference in
setting, including, of course, the sheer impact of the condonation doctrine on public
accountability, calls for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.
Pascual's ratio decidendi may be dissected into three (3) parts:
First, the penalty of removal may not be extended beyond the term in which the public
officer was elected for each term is separate and distinct:
Offenses committed, or acts done, during previous term are generally held not to
furnish cause for removal and this is especially true where the constitution provides that
the penalty in proceedings for removal shall not extend beyond the removal from office,
and disqualification from holding office for the term for which the officer was elected
or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs.
Nowell, 40 S.W. 2d. 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d. 237; Board of
Com'rs of Kingfisher County vs. Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re
Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x x x.[272]
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Second, an elective official's re-election serves as a condonation of previous misconduct,
thereby cutting the right to remove him therefor; and
[T]hat the reelection to office operates as a condonation of the officer's previous
misconduct to the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45,
citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553.[273] (emphasis
supplied)
Third, courts may not deprive the electorate, who are assumed to have known the life and
character of candidates, of their right to elect officers:
As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50
LRA (NS) 553 —
The Court should never remove a public officer for acts done prior to his present term of
office. To do otherwise would be to deprive the people of their right to elect their
officers. When the people have elected a man to office, it must be assumed that they
did this with knowledge of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by
reason of such faults or misconduct to practically overrule the will of the people.
[274]
(Emphases supplied)
The notable cases on condonation following Pascual are as follows:
(1) Lizares v. Hechanova[275] (May 17, 1966) - wherein the Court first applied the
condonation doctrine, thereby quoting the above-stated passages from Pascual in verbatim.
(2) Insco v. Sanchez, et al. [276] (December 18, 1967) - wherein the Court clarified that the
condonation doctrine does not apply to a criminal case. It was explained that a criminal
case is different from an administrative case in that the former involves the People of the
Philippines as a community, and is a public wrong to the State at large; whereas, in the
latter, only the populace of the constituency he serves is affected. In addition, the Court
noted that it is only the President who may pardon a criminal offense.
(3) Aguinaldo v. Santos[277] (Aguinaldo; August 21, 1992) - a case decided under the

1987 Constitution wherein the condonation doctrine was applied in favor of then Cagayan
Governor Rodolfo E. Aguinaldo although his re-election merely supervened the
pendency of, the proceedings.
(4) Salalima v. Guinsona, Jr.[278] (Salalima; May 22, 1996) -wherein the Court reinforced

the condonation doctrine by stating that the same is justified by "sound public
policy." According to the Court, condonation prevented the elective official from being
"hounded" by administrative cases filed by his "political enemies" during a new term, for
which he has to defend himself "to the detriment of public service." Also, the Court
mentioned that the administrative liability condoned by re-election covered the execution of
the contract and the incidents related therewith. [279]
(5) Mayor Garcia v. Mojica[280] (Mayor Garcia; September 10, 1999) - wherein the benefit of
the doctrine was extended to then Cebu City Mayor Alvin B. Garcia who was
administratively charged for his involvement in an anomalous contract for the supply of
asphalt for Cebu City, executed only four (4) days before the upcoming elections. The Court
ruled that notwithstanding the timing of the contract's execution, the electorate is presumed
to have known the petitioner's background and character, including his past misconduct;
hence, his subsequent re-election was deemed a condonation of his prior transgressions.
More importantly, the Court held that the determinative time element in applying the
condonation doctrine should be the time when the contract was perfected; this meant that
as long as the contract was entered into during a prior term, acts which were done to
implement the same, even if done during a succeeding term, do not negate the
application of the condonation doctrine in favor of the elective official.
(6) Salumbides, Jr. v. Office of the Ombudsman [281] (Salumbides, Jr.; April 23, 2010) -
wherein the Court explained the doctrinal innovations in the Salalima and Mayor
Garcia rulings, to wit:
Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The
condonation rule was applied even if the administrative complaint was not filed
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before the reelection of the public official, and even if the alleged misconduct
occurred four days before the elections, respectively. Salalima did not distinguish as to
the date of filing of the administrative complaint, as long as the alleged misconduct was
committed during the prior term, the precise timing or period of which Garcia did not further
distinguish, as long as the wrongdoing that gave rise to the public official's culpability was
committed prior to the date of reelection. [282] (Emphasis supplied)
The Court, citing Civil Service Commission v. Sojor,[283] also clarified that the condonation

doctrine would not apply to appointive officials since, as to them, there is no sovereign
will to disenfranchise.
(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court
remarked that it would have been prudent for the appellate court therein to have issued a
temporary restraining order against the implementation of a preventive suspension order
issued by the Ombudsman in view of the condonation doctrine.
A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor

Garcia, and Governor Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April
6, 2015 Resolutions directing the issuance of the assailed injunctive writs - would show that
the basis for condonation under the prevailing constitutional and statutory framework was
never accounted for. What remains apparent from the text of these cases is that the basis
for condonation, as jurisprudential doctrine, was - and still remains - the above-cited
postulates of Pascual, which was lifted from rulings of US courts where condonation was
amply supported by their own state laws. With respect to its applicability to administrative
cases, the core premise of condonation - that is, an elective official's re-election cuts qff the
right to remove him for an administrative offense committed during a prior term - was
adopted hook, line, and sinker in our jurisprudence largely because the legality of that
doctrine was never tested against existing legal norms. As in the US, the propriety of
condonation is - as it should be -dependent on the legal foundation of the adjudicating
jurisdiction. Hence, the Court undertakes an examination of our current laws in order to
determine if there is legal basis for the continued application of the doctrine of condonation.
The foundation of our entire legal system is the Constitution. It is the supreme law of the
land;[284] thus, the unbending rule is that every statute should be read in light of the
Constitution.[285] Likewise, the Constitution is a framework of a workable government; hence,
its interpretation must take into account the complexities, realities, and politics attendant to
the operation of the political branches of government. [286]
As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was

decided within the context of the 1935 Constitution which was silent with respect to public
accountability, or of the nature of public office being a public trust. The provision in the 1935
Constitution that comes closest in dealing with public office is Section 2, Article II which
states that "[t]he defense of the State is a prime duty of government, and in the fulfillment of
this duty all citizens may be required by law to render personal military or civil
service."[287] Perhaps owing to the 1935 Constitution's silence on public accountability, and
considering the dearth of jurisprudential rulings on the matter, as well as the variance in the
policy considerations, there was no glaring objection confronting the Pascual Court in
adopting the condonation doctrine that originated from select US cases existing at that time.
With the advent of the 1973 Constitution, the approach in dealing with public officers
underwent a significant change. The new charter introduced an entire article on
accountability of public officers, found in Article XIII. Section 1 thereof positively recognized,
acknowledged, and declared that "[p]ublic office is a public trust." Accordingly, "[p]ublic
officers and employees shall serve with the highest degree of responsibility,
integrity, loyalty and efficiency, and shall remain accountable to the people."
After the turbulent decades of Martial Law rule, the Filipino People have framed and
adopted the 1987 Constitution, which sets forth in the Declaration of Principles and State
Policies in Article II that "[t]he State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and
corruption."[288] Learning how unbridled power could corrupt public servants under the
regime of a dictator, the Framers put primacy on the integrity of the public service by
declaring it as a constitutional principle and a State policy. More significantly, the 1987
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Constitution strengthened and solidified what has been first proclaimed in the 1973
Constitution by commanding public officers to be accountable to the people at all times:
Section 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency and act with patriotism and justice, and lead modest lives.
In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that
"public office is a public trust," is an overarching reminder that every instrumentality of
government should exercise their official functions only in accordance with the principles of
the Constitution which embodies the parameters of the people's trust. The notion of a
public trust connotes accountability x x x.[289] (Emphasis supplied)
The same mandate is found in the Revised Administrative Code under the section of the
Civil Service Commission,[290] and also, in the Code of Conduct and Ethical Standards for
Public Officials and Employees.[291]
For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove
an elective local official from office are stated in Section 60 of Republic Act No. 7160,
[292]
otherwise known as the "Local Government Code of 1991" (LGC), which was approved
on October 10 1991, and took effect on January 1, 1992:
Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined,
suspended, or removed from office on any of the r following grounds:
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at
least prision mayor;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan,
and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and
An elective local official may be removed from office on the grounds enumerated above by
order of the proper court.
Related to this provision is Section 40 (b) of the LGC which states that those removed
from office as a result of an administrative case shall be disqualified from running for
any elective local position:
Section 40. Disqualifications. - The following persons are disqualified from running for any
x x x x
(b) Those removed from office as a result of an administrative case;
In the same sense, Section 52 (a) of the RRACCS provides that the penalty of
dismissal from service carries the accessory penalty of perpetual disqualification
from holding public office:
Section 52. - Administrative Disabilities Inherent in Certain Penalties. -
a. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of
retirement benefits, perpetual disqualification from holding public office, and bar
from taking the civil service examinations.
In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not
exceed the unexpired term of the elective local official nor constitute a bar to his candidacy
for as long as he meets the qualifications required for the office. Note, however, that the
provision only pertains to the duration of the penalty and its effect on the official's
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candidacy. Nothing therein states that the administrative liability therefor is
extinguished by the fact of re-election:
Section 66. Form and Notice of Decision. - x x x.
x x x x
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a
period of six (6) months for every administrative offense, nor shall said penalty be a bar to
the candidacy of the respondent so suspended as long as he meets the qualifications
required for the office.
Reading the 1987 Constitution together with the above-cited legal provisions now leads this
Court to the conclusion that the doctrine of condonation is actually bereft of legal bases.
To begin with, the concept of public office is a public trust and the corollary
requirement of accountability to the people at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that an elective local official's
administrative liability for a misconduct committed during a prior term can be wiped off by
the fact that he was elected to a second term of office, or even another elective
post. Election is not a mode of condoning an administrative offense, and there is
simply no constitutional or statutory basis in our jurisdiction to support the notion that an
official elected for a different term is fully absolved of any administrative liability arising from
an offense done during a prior term. In this jurisdiction, liability arising from
administrative offenses may be condoned bv the President in light of Section 19, Article
VII of the 1987 Constitution which was interpreted in Llamas v. Orbos[293] to apply to
administrative offenses:
The Constitution does not distinguish between which cases executive clemency may be
exercised by the President, with the sole exclusion of impeachment cases. By the same
token, if executive clemency may be exercised only in criminal cases, it would indeed be
unnecessary to provide for the exclusion of impeachment cases from the coverage of Article
VII, Section 19 of the Constitution. Following petitioner's proposed interpretation, cases of
impeachment are automatically excluded inasmuch as the same do not necessarily involve
criminal offenses.
In the same vein, We do not clearly see any valid and convincing , reason why the
President cannot grant executive clemency in administrative cases. It is Our considered
view that if the President can grant reprieves, commutations and pardons, and remit fines
and forfeitures in criminal cases, with much more reason can she grant executive clemency
in administrative cases, which are clearly less serious than criminal offenses.
Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline
enumerated therein cannot anymore be invoked against an elective local official to hold him
administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC
precludes condonation since in the first place, an elective local official who is meted with the
penalty of removal could not be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS
imposes a penalty of perpetual disqualification from holding public office as an accessory to
the penalty of dismissal from service.
To compare, some of the cases adopted in Pascual were decided by US State jurisdictions

wherein the doctrine of condonation of administrative liability was supported by either a
constitutional or statutory provision stating, in effect, that an officer cannot be removed by a
misconduct committed during a previous term, [294] or that the disqualification to hold the
office does not extend beyond the term in which the official's delinquency occurred.
[295]
In one case,[296] the absence of a provision against the re-election of an officer removed -
unlike Section 40 (b) of the LGC-was the justification behind condonation. In another case,
[297]
it was deemed that condonation through re-election was a policy under their
constitution - which adoption in this jurisdiction runs counter to our present Constitution's
requirements on public accountability. There was even one case where the doctrine of
condonation was not adjudicated upon but only invoked by a party as a ground; [298] while in
another case, which was not reported in full in the official series, the crux of the disposition
was that the evidence of a prior irregularity in no way pertained to the charge at issue and
therefore, was deemed to be incompetent.[299] Hence, owing to either their variance or
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inapplicability, none of these cases can be used as basis for the continued adoption of the
condonation doctrine under our existing laws.
At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of

suspension beyond the unexpired portion of the elective local official's prior term, and
likewise allows said official to still run for re-election This treatment is similar to People ex
rel Bagshaw v. Thompson[300] and Montgomery v. Novell[301] both cited in Pascual, wherein it
was ruled that an officer cannot be suspended for a misconduct committed during a prior
term. However, as previously stated, nothing in Section 66 (b) states that the elective local
official's administrative liability is extinguished by the fact of re-election. Thus, at all events,
no legal provision actually supports the theory that the liability is condoned.
Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts
would be depriving the electorate of their right to elect their officers if condonation were not
to be sanctioned. In political law, election pertains to the process by which a particular
constituency chooses an individual to hold a public office. In this jurisdiction, there is, again,
no legal basis to conclude that election automatically implies condonation. Neither is there
any legal basis to say that every democratic and republican state has an inherent regime of
condonation. If condonation of an elective official's administrative liability would perhaps, be
allowed in this jurisdiction, then the same should have been provided by law under our
governing legal mechanisms. May it be at the time of Pascual or at present, by no means
has it been shown that such a law, whether in a constitutional or statutory provision, exists.
Therefore, inferring from this manifest absence, it cannot be said that the electorate's will
has been abdicated.
Equally infirm is Pascual's proposition that the electorate, when re-electing a local official,
are assumed to have done so with knowledge of his life and character, and that they
disregarded or forgave his faults or misconduct, if he had been guilty of any. Suffice it to
state that no such presumption exists in any statute or procedural rule. [302] Besides, it is
contrary to human experience that the electorate would have full knowledge of a public
official's misdeeds. The Ombudsman correctly points out the reality that most corrupt acts
by public officers are shrouded in secrecy, and concealed from the public. Misconduct
committed by an elective official is easily covered up, and is almost always unknown
to the electorate when they cast their votes.[303] At a conceptual level, condonation
presupposes that the condoner has actual knowledge of what is to be condoned. Thus,
there could be no condonation of an act that is unknown. As observed in Walsh v. City
Council of Trenton[304] decided by the New Jersey Supreme Court:
Many of the cases holding that re-election of a public official prevents his removal for acts
done in a preceding term of office are reasoned out on the theory of condonation. We
cannot subscribe to that theory because condonation, implying as it does forgiveness,
connotes knowledge and in the absence of knowledge there can be no condonation. One
cannot forgive something of which one has no knowledge.
That being said, this Court simply finds no legal authority to sustain the condonation
doctrine in this jurisdiction. As can be seen from this discourse, it was a doctrine adopted
from one class of US rulings way back in 1959 and thus, out of touch from - and now
rendered obsolete by - the current legal regime. In consequence, it is high time for this
Court to abandon the condonation doctrine that originated from Pascual, and affirmed in the
cases following the same, such as Aguinaldo, Salalima, Mayor Garcia, and Governor
Garcia, Jr. which were all relied upon by the CA.
It should, however, be clarified that this Court's abandonment of the condonation doctrine
should be prospective in application for the reason that judicial decisions applying or
interpreting the laws or the Constitution, until reversed, shall form part of the legal system of
the Philippines.[305] Unto this Court devolves the sole authority to interpret what the
Constitution means, and all persons are bound to follow its interpretation. As explained
in De Castro v. Judicial Bar Council.[306]
Judicial decisions assume the same authority as a statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria that must
control the actuations, not only of those called upon to abide by them, but also of those
duty-bound to enforce obedience to them.[307]
Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general
Josef Elvin Campos
rule, recognized as "good law" prior to its abandonment. Consequently, the people's
reliance thereupon should be respected. The landmark case on this matter is People v.
Jabinal,[308] wherein it was ruled:
[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had relied on the old
doctrine and acted on the faith thereof.
Later, in Spouses Benzonan v. CA,[309] it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or
the Constitution shall form a part of the legal system of the Philippines." But while our
decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code
which provides that "laws shall have no retroactive effect unless the contrary is provided."
This is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks
forward not backward. The rationale against retroactivity is easy to perceive. The retroactive
application of a law usually divests rights that have already become vested or impairs the
obligations of contract and hence, is unconstitutional. [310]
Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight
and rectify its ensuing course. Thus, while it is truly perplexing to think that a doctrine which
is barren of legal anchorage was able to endure in our jurisprudence for a considerable
length of time, this Court, under a new membership, takes up the cudgels and now
abandons the condonation doctrine.
E. Consequence of ruling.
As for this section of the Decision, the issue to be resolved is whether or not
the CA committed grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed injunctive writs.
It is well-settled that an act of a court or tribunal can only be considered as with grave abuse
of discretion when such act is done in a capricious or whimsical exercise of judgment
as is equivalent to lack of jurisdiction. 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 and hostility. [311] It has also been
held that "grave abuse of discretion arises when a lower court or tribunal patently
violates the Constitution, the law or existing jurisprudence."[312]
As earlier established, records disclose that the CA's resolutions directing the issuance of
the assailed injunctive writs were all hinged on cases enunciating the condonation doctrine.
To recount, the March 16, 2015 Resolution directing the issuance of the subject TRO was
based on the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the
issuance of the subject WPI was based on the cases of Aguinaldo, Salalima, Mayor
Garcia, and again, Governor Garcia, Jr. Thus, by merely following settled precedents on the
condonation doctrine, which at that time, unwittingly remained "good law," it cannot be
concluded that the CA committed a grave abuse of discretion based on its legal attribution
above. Accordingly, the WPI against the Ombudsman's preventive suspension order was
correctly issued.
With this, the ensuing course of action should have been for the CA to resolve the main
petition for certiorari in CA-G.R. SP No. 139453 on the merits. However, considering that
the Ombudsman, on October 9, 2015, had already found Binay, Jr. administratively liable
and imposed upon him the penalty of dismissal, which carries the accessory penalty of
perpetual disqualification from holding public office, for the present administrative charges
against him, the said CA petition appears to have been mooted. [313] As initially intimated, the
preventive suspension order is only an ancillary issuance that, at its core, serves the
purpose of assisting the Office of the Ombudsman in its investigation. It therefore has no
more purpose - and perforce, dissolves - upon the termination of the office's process of
investigation in the instant administrative case.
F. Exceptions to the mootness principle.
This notwithstanding, this Court deems it apt to clarify that the mootness of the issue
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regarding the validity of the preventive suspension order subject of this case does not
preclude any of its foregoing determinations, particularly, its abandonment of the
condonation doctrine. As explained in Belgica, '"the moot and academic principle' is not a
magical formula that can automatically dissuade the Court in resolving a case. The Court
will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public
interest is involved; third, when the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and fourth, the case is
capable of repetition yet evading review."[314] All of these scenarios obtain in this case:
First, it would be a violation of the Court's own duty to uphold and defend the Constitution if
it were not to abandon the condonation doctrine now that its infirmities have become
apparent. As extensively discussed, the continued application of the condonation doctrine is
simply impermissible under the auspices of the present Constitution which explicitly
mandates that public office is a public trust and that public officials shall be accountable to
the people at all times.
Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as
a defense of elective officials to escape administrative liability. It is the first time that the
legal intricacies of this doctrine have been brought to light; thus, this is a situation of
exceptional character which this Court must ultimately resolve. Further, since the doctrine
has served as a perennial obstacle against exacting public accountability from the multitude
of elective local officials throughout the years, it is indubitable that paramount public interest
is involved.
Third, the issue on the validity of the condonation doctrine clearly requires the formulation
of controlling principles to guide the bench, the bar, and the public. The issue does not only
involve an in-depth exegesis of administrative law principles, but also puts to the forefront of
legal discourse the potency of the accountability provisions of the 1987 Constitution. The
Court owes it to the bench, the bar, and the public to explain how this controversial doctrine
came about, and now, its reasons for abandoning the same in view of its relevance on the
parameters of public office.
And fourth, the defense of condonation has been consistently invoked by elective local
officials against the administrative charges filed against them. To provide a sample size, the
Ombudsman has informed the Court that "for the period of July 2013 to December 2014
alone, 85 cases from the Luzon Office and 24 cases from the Central Office were dismissed
on the ground of condonation. Thus, in just one and a half years, over a hundred cases of
alleged misconduct - involving infractions such as dishonesty, oppression, gross neglect of
duty and grave misconduct - were placed beyond the reach of the Ombudsman's
investigatory and prosecutorial powers."[315] Evidently, this fortifies the finding that the case
is capable of repetition and must therefore, not evade review.
In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As
mentioned, it is its own jurisprudential creation and may therefore, pursuant to its mandate
to uphold and defend the Constitution, revoke it notwithstanding supervening events that
render the subject of discussion moot.
V.
With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on
the final issue on whether or not the CA's Resolution [316] dated March 20, 2015 directing the
Ombudsman to comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is
improper and illegal.
The sole premise of the Ombudsman's contention is that, as an impeachable officer, she
cannot be the subject of a charge for indirect contempt [317] because this action is criminal in
nature and the penalty therefor would result in her effective removal from office.
[318]
However, a reading of the aforesaid March 20, 2015 Resolution does not show that she
has already been subjected to contempt proceedings. This issuance, in? fact, makes it clear
that notwithstanding the directive for the Ombudsman to comment, the CA has not
necessarily given due course to Binay, Jr.'s contempt petition:
Without necessarily giving due course to the Petition for Contempt respondents [Hon.
Conchita Carpio Morales, in her capacity as the Ombudsman, and the Department of
Josef Elvin Campos
Interior and Local Government] are hereby DIRECTED to file Comment on the
Petition/Amended and Supplemental Petition for Contempt (CA-G.R. SP No. 139504) within
an inextendible period of three (3) days from receipt hereof. (Emphasis and underscoring
supplied)
Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein
she may properly raise her objections to the contempt proceedings by virtue of her being an
impeachable officer, the CA, in the exercise of its sound judicial discretion, may still opt not
to give due course to Binay, Jr.'s contempt petition and accordingly, dismiss the same.
Sjmply put, absent any indication that the contempt petition has been given due course by
the CA, it would then be premature for this Court to rule on the issue. The submission of the
Ombudsman on this score is perforce denied.
WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision,

the Court resolves as follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770 is

declared UNCONSTITUTIONAL, while the policy against the issuance of provisional
injunctive writs by courts other than the Supreme Court to enjoin an investigation conducted
by the Office of the Ombudsman under the first paragraph of the said provision
is DECLARED ineffective until the Court adopts the same as part of the rules of procedure
through an administrative circular duly issued therefor;
(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in

effect;
(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay,
Jr.'s (Binay, Jr.) petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the
Ombudsman's supervening issuance of its Joint Decision dated October 9, 2015 finding
Binay, Jr. administratively liable in the six (6) administrative complamts, docketed as OMB-
C-A-15-0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-15-
0062, and OMB-C-A-15-0063; and
(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA
is DIRECTED to resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with
utmost dispatch.
SO ORDERED.
B. Appointive Local Officials

1. Responsibility for Human Resources and Development
2. Discipline (Secs. 84-88, LGC)
Section 84. Administrative Discipline. - Investigation and adjudication of
administrative complaints against appointive local officials and employees
as well as their suspension and removal shall be in accordance with the
civil service law and rules and other pertinent laws. The results of such
administrative investigations shall be reported to the Civil Service
Commission.
Section 85. Preventive Suspension of Appointive Local Officials and
Employees. -
(a) The local chief executives may preventively suspend for a period
not exceeding sixty (60) days and subordinate official or employee
under his authority pending investigation if the charge against such
official or employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty, or if there is reason
to believe that the respondent is guilty of the charges which would
warrant his removal from the service.
(b) Upon expiration of the preventive suspension, the suspended
official or employee shall be automatically reinstated in office without
prejudice to the continuation of the administrative proceedings against
him until its termination. If the delay in the proceedings of the case is
due to the fault, neglect or request of the respondent, the time of the
Josef Elvin Campos
delay shall not be counted in computing the period of suspension
herein provided.
Section 86. Administrative Investigation. - In any local government unit,
administrative investigation may be conducted by a person or a committee
duly authorized by the local chief executive. Said person or committee
shall conduct hearings on the cases brought against appointive local
officials and employees and submit their findings and recommendations to
the local chief executive concerned within fifteen (15) days from the
conclusion of the hearings. The administrative cases herein mentioned
shall be decided within ninety (90) days from the time the respondent is
formally notified of the charges.
Section 87. Disciplinary Jurisdiction. - Except as otherwise provided by
law, the local chief executive may impose the penalty of removal from
service, demotion in rank, suspension for not more than one (1) year
without pay, fine in an amount not exceeding six (6) months salary, or
reprimand and otherwise discipline subordinate officials and employees
under his jurisdiction. If the penalty imposed is suspension without pay for
not more than thirty (30) days, his decision shall be final. If the penalty
imposed is heavier than suspension of thirty (30) days, the decision shall
be appealable to the Civil Service Commission, which shall decide the
appeal within thirty (30) days from receipt thereof.
Section 88. Execution Pending Appeal. - An appeal shall not prevent the
execution of a decision of removal or suspension of a respondent-
appellant. In case the respondent-appellant is exonerated, he shall be
reinstated to his position with all the rights and privileges appurtenant
thereto from the time he had been deprived thereof.
Cases:
De Rama v. CA (G.R. No. 131136, February 28, 2001)
[G.R. No. 131136. February 28, 2001.]
CONRADO L. DE RAMA, Petitioner, v. THE COURT OF APPEALS (NINTH DIVISION,

THE CIVIL SERVICE COMMISSION), ELADIO MARTINEZ, DIVINO DE JESUS, MORELL
AYALA, ARISTEO CATALLA, DAISY PORTA, FLORDELIZA ORIASEL, GRACIELA
GLORY, FELECIDAD ORINDAY, MA. PETRA MUFFET LUCE, ELSA MARINO,
BERNARDITA MENDOZA, JANE MACATANGAY, ADELFO GLODOVIZA and FLORINO
RAMOS, Respondents.
DECISION
YNARES-SANTIAGO, J.:
Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L. de
Rama wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC), seeking
the recall of the appointments of fourteen (14) municipal employees, namely:chanrob1es
virtua1 1aw 1ibrary
NAME POSITION DATE OF
APPOINTMENT
Eladio Martinez Registration Officer I June 1, 1995
Divino de Jesus Bookbinder III June 1, 1995
Morell Ayala Accounting Clerk III June 16, 1995
Daisy Porta Clerk IV June 27, 1995
Aristeo Catalla Gen. Services Officer June 19, 1995
Josef Elvin Campos
Elsa Marino Mun. Agriculturist June 19, 1995
Gracella Glory Bookkeeper II June 27, 1995
Ma. Petra Muffet Lucce Accounting Clerk III June 27, 1995
Felicidad Orindag Accounting Clerk II June 27, 1995
Bernardita Mendoza Agricultural Technologist June 27, 1995
Flordeliza Oriazel Clerk I June 27, 1995
Jane Macatangay Day Care Worker I June 27, 1995
Adolfo Glodoviza Utility Worker II June 27, 1995
Florencio Ramos Utility Foreman June 27, 1995 1
Petitioner de Rama justified his recall request on the allegation that the appointments of the
said employees were "midnight" appointments of the former mayor, Ma. Evelyn S. Abeja,
done in violation of Article VII, Section 15 of the 1987 Constitution, which
provides:chanrob1es virtual 1aw library
SECTION 15. Two months immediately before the next presidential elections and up to the
end of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety. (Emphasis supplied)
While the matter was pending before the CSC, three of the above-named employees,
namely: Elsa Marino, Morell Ayala, and Flordeliza Oriazel, filed with the CSC a claim for
payment of their salaries, alleging that although their appointments were declared
permanent by Conrado Gulim, Director II of the CSC Field Office based in Quezon,
petitioner de Rama withheld the payment of their salaries and benefits pursuant to Office
Order No. 95-01, which was issued on June 30, 1995, wherein the appointments of the said
fourteen (14) employees were recalled.chanrob1es virtua1 1aw 1ibrary
Based on the documents submitted by Marino, Ayala and Oriazel, the Legal and Quasi-
Judicial Division of the CSC issued an Order 2 finding that since the claimants-employees
had assumed their respective positions and performed their duties pursuant to their
appointments, they are therefore entitled to receive the salaries and benefits appurtenant to
their positions. Citing Rule V, Section 10 of the Omnibus Rules 3 which provides, in part,
that "if the appointee has assumed the duties of the position, he shall be entitled to receive
his salary at once without awaiting the approval of his appointment by the Commission," the
CSC Legal and Quasi-Judicial Division ruled that the said employees cannot be deprived of
their salaries and benefits by the unilateral act of the newly-assumed mayor.
On April 30, 1996, the CSC denied petitioner’s request for the recall of the appointments of
the fourteen employees, for lack of merit. The CSC also cited Rule V, Sections 9 and 10 of
the Omnibus Rules, and declared that the appointments of the said employees were issued
in accordance with pertinent laws. Thus, the same were effective immediately, and cannot
be withdrawn or revoked by the appointing authority until disapproved by the CSC. The
CSC also dismissed petitioner’s allegation that these were "midnight" appointments,
pointing out that the Constitutional provision relied upon by petitioner prohibits only those
appointments made by an outgoing President and cannot be made to apply to local elective
officials. Thus, the CSC opined, "the appointing authority can validly issue appointments
until his term has expired, as long as the appointee meets the qualification standards for the
position." 4
The CSC upheld the validity of the appointments on the ground that they had already been
approved by the Head of the CSC Field Office in Lucena City, and for petitioner’s failure to
present evidence that would warrant the revocation or recall of the said appointments.
Petitioner moved for the reconsideration of the CSC’s Resolution, as well as the Order of
Josef Elvin Campos
the CSC Legal and Quasi-Judicial Division, averring that the CSC was without jurisdiction:
(1) to refuse to revoke the subject appointments; and (2) to uphold the validity of said
appointments, even assuming that there was failure to present evidence that would prove
that these appointments contravened existing laws or rules. He also posited that the CSC
erred in finding the appointments valid despite the existence of circumstances showing that
the same were fraudulently issued and processed.
On November 21, 1996, the CSC denied petitioner’s motion for reconsideration. The CSC
reiterated its ruling that:chanrob1es virtua1 1aw 1ibrary
In the absence of any showing that these alleged midnight appointments were defective in
form and in substance, nor is there evidence presented to show that subject appointments
were issued in contravention of law or rules, these appointments are deemed valid and in
effect.
x x x
Mayor de Rama failed to present evidence that subject appointments should be revoked or
recalled because of any of the above-mentioned grounds enumerated. As a matter of fact,
said appointments were even approved by the Head, Civil Service Field Office, Lucena City
when submitted for attestation. In the absence of a clear showing that these appointments
were issued in violation of any of these grounds, the Commission has no other recourse but
to uphold their validity. (Emphasis supplied)
The CSC also cited the Supreme Court ruling in the case of Aquino v. Civil Service
Commission, 5 wherein this Court held that:chanrob1es virtual 1aw library
It is well-settled that once an appointment is issued and the moment the appointee assumes
a position in the civil service under a completed appointment, he acquires a legal, not
merely equitable right (to the position), which is protected not only by statute, but also by
the Constitution, and cannot be taken away from him either by revocation of the
appointment, or by removal, except for cause, and with previous notice and hearing.
(Emphasis supplied)
Consequently, petitioner filed a petition for review before the Court of Appeals, arguing that
the CSC arrived at the erroneous conclusion after it ignored his "supplement to the
consolidated appeal and motion for reconsideration" wherein he laid out evidence showing
that the subject appointments were obtained through fraud.chanrob1es virtua1 1aw 1ibrary
After reviewing the facts and issues raised by petitioner, the Court of Appeals issued a
Resolution 6 dated May 16, 1997 which held that there was no abuse of the power of
appointment on the part of the outgoing mayor.
The Court of Appeals further held that the fact that the appointments of Marino, Ayala,
Ramos, Mendoza and Glory were made more than four (4) months after the publication of
the vacancies to which they were appointed is of no moment. Setting aside petitioner’s
suppositions, the Court of Appeals ruled that Republic Act No. 7041 does not provide that
every appointment to the local government service must be made within four (4) months
from publication of the vacancies. It cited Section 80 of said Act, to wit:chanrob1es virtual
1aw library
SECTION 80. Public Notice of Vacancy: Personnel Selection Board. — (a) Whenever a
local chief executive decides to fill a vacant career position, there shall be posted notices of
the vacancy in at least three (3) conspicuous public places in the local government unit
concerned for a period of not less than fifteen (15) days.
(b) There shall be established in every province, city or municipality a personnel selection
board to assist the local chief executive in the judicious and objective selection of personnel
for employment as well as for promotion, and in the formulation of such policies as would
contribute to employee welfare.
(c) The personnel selection board shall be headed by the local sanggunian concerned. A
representative of the Civil Service Commission, if any, and the personnel officer of the local
Josef Elvin Campos
government unit concerned shall be ex officio members of the board. 7
Likewise, neither did the CSC’s own Circular Order No. 27, Section 7, Series of 1991,
require that vacant positions published in a government quarterly must be filled up before
the advent of the succeeding quarter.
On the basis of all the foregoing findings, the Court of Appeals denied for lack of merit the
petition for review.
Petitioner filed a motion for reconsideration arguing that the appellate court erred in
upholding the CSC’s resolutions despite the following defects:chanrob1es virtual 1aw library
I. No screening process and no criteria were adopted by the Personnel Selection Board in
nominating the respondents;
II. No posting in three (3) conspicuous public places of notice of vacancy as required by the
rules and the law;
III. Merit and fitness requirements were not observed by the selection board and by the
appointing authority as required by the Civil Service rules;
IV. Petitioner has valid grounds to recall the appointments of respondents. 8
In a Resolution dated October 20, 1997, the Court of Appeals denied the motion for
reconsideration.
Hence, the instant petition for review on certiorari on the following assigned
errors:chanrob1es virtua1 1aw 1ibrary
I. THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND SERIOUSLY

ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION WAS CORRECT IN NOT
UPHOLDING THE PETITIONERS RECALL OF THE APPOINTMENTS OF PRIVATE
RESPONDENTS IN THE FACE OF FRAUD AND VIOLATION OF RULES AND LAWS ON
ISSUANCE OF APPOINTMENTS.
II. THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING

THAT THE PARTICULAR GROUNDS NAMELY:chanrob1es virtual 1aw library
I. No screening process and no criteria were adopted by the Personnel Selection Board in
nominating the respondents;
II. No posting in three (3) conspicuous public places of notice of vacancy as required by the
rules and the law;
III. Merit and fitness requirements were not observed by the selection board and by the
appointing authority as required by the Civil Service rules;
IV. Petitioner has valid grounds to recall the appointments of respondents.
ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE APPOINTMENTS
BY THE PETITIONER WERE PRECISELY THE VIOLATION OF LAWS AND
REGULATIONS ON ISSUANCE OF APPOINTMENTS AS RAISED BEFORE THE
RESPONDENT CIVIL SERVICE COMMISSION.
Petitioner assails the findings of both the CSC and the Court of Appeals for being contrary
to law and not being supported by the evidence on record.chanrobles virtuallawlibrary
This argument is too specious to be given credence. The records reveal that when the
petitioner brought the matter of recalling the appointments of the fourteen (14) private
respondents before the CSC, the only reason he cited to justify his action was that these
were "midnight appointments" that are forbidden under Article VII, Section 15 of the
Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only
to presidential appointments. In truth and in fact, there is no law that prohibits local elective
Josef Elvin Campos
officials from making appointments during the last days of his or her tenure. Petitioner
certainly did not raise the issue of fraud on the part of the outgoing mayor who made the
appointments. Neither did he allege that the said appointments were tainted by irregularities
or anomalies that breached laws and regulations governing appointments. His solitary
reason for recalling these appointments was that they were, to his personal belief, "midnight
appointments" which the outgoing mayor had no authority to make.
Even in petitioner’s consolidated appeal and motion for reconsideration, he did not make
any assertion that these appointments were violative of civil service rules and procedures.
Indeed, he harped on the CSC’s alleged lack of jurisdiction to refuse to recall the subject
appointments. After first invoking the authority of the CSC to approve or affirm his act, he
then contradicted himself by arguing that the CSC had no jurisdiction to do so, but only after
the CSC had ruled that the recall was without legal basis. He emphasized that he alone has
sole discretion to appoint and recall the appointment of municipal employees, an authority
which, he stressed, the CSC cannot usurp. Yet, nowhere in said pleading did he cite any
other ground, much less present proof that would warrant the recall of said appointments.
Perhaps realizing the weakness of his arguments, albeit belatedly, petitioner filed a
supplement to the appeal and motion for reconsideration where, for the very first time, he
alleged that the appointments were fraught with irregularities for failing to comply with CSC
rules and regulations. Nevertheless, the CSC overruled petitioner’s assertions, holding that
no new evidence had been presented to warrant a reversal of its earlier resolution.
Thus, in a petition for review before the Court of Appeals, petitioner questioned the CSC’s
conclusion because it had ignored the allegations and documents he presented in the
supplement to his earlier consolidated appeal and motion for reconsideration. He argued
that these form part of the records of the case and that the CSC erred in failing to consider
the assertions he raised therein. The appellate court, however, agreed with the CSC when it
ruled that the documents presented by petitioner in the supplemental pleading did not
constitute "new evidence" that would convince the CSC to reverse its earlier ruling. In fine,
the Court of Appeals, as did the CSC, simply dismissed petitioner’s allegations and
documents attached to the supplemental pleading for they did not constitute new evidence
that a court, board or tribunal may entertain.
Herein lies the inconsistency of petitioner’s arguments. He faults the Court of Appeals and
the CSC for ignoring his supplemental pleading, while at the same time arguing that the
grounds for recall such as violations of laws and regulations on issuance of appointments
are not new issues because he had timely raised them before the CSC.
There is no question that parties may file supplemental pleadings to supply deficiencies in
aid of an original pleading, but which should not entirely substitute the latter. 9 The propriety
and substance of supplemental pleadings are prescribed under Rule 10, Section 6 of the
1997 Rules of Civil Procedure, which provides:chanrob1es virtua1 1aw 1ibrary
SECTION 6. Supplemental Pleadings. — Upon motion of a party the court may, upon
reasonable notice and upon such terms as are just, permit him to serve a supplemental
pleading setting forth transactions, occurrences or events which have happened since the
date of the pleading sought to be supplemented. The adverse party may plead thereto
within ten (10) days from notice of the order admitting the supplemental pleading.
Supplemental pleadings must be with reasonable notice, and it is discretionary upon the
court or tribunal to allow the same or not. Thus, the CSC was under no obligation to admit
the supplemental pleading, or even to consider the averments therein.
Secondly, a supplemental pleading must state transactions, occurrences or events which

took place since the time the pleading sought to be supplemented was filed. In the instant
case, petitioner alleged fraud and irregularities that supposedly occurred contemporaneous
to the execution of the appointments. They should have been raised at the very first
opportunity. They are not new events which petitioner could not have originally included as
grounds for the recall of the appointments.
Accordingly, the CSC, as well as the Court of Appeals, found that the allegations in his
supplemental pleading did not constitute "new evidence" that can be the proper subject of a
Josef Elvin Campos
supplemental pleading. These were old facts and issues which he failed to raise earlier.
Consequently, the CSC and the Court of Appeals did not err in refusing to give credence to
the supplemental pleading.
Be that as it may, these alleged irregularities were considered by the CSC and the Court of
Appeals as new issues which were raised for the first time on appeal. It is rather too late for
petitioner to raise these issues for the first time on appeal. It is well-settled that issues or
questions of fact cannot be raised for the first time on appeal. 10 We have consistently held
that matters, theories or arguments not brought out in the original proceedings cannot be
considered on review or appeal where they are raised for the first time. 11 To consider the
alleged facts and arguments raised belatedly in the supplemental pleading to the appeal at
this very late stage in the proceedings would amount to trampling on the basic principles of
fair play, justice and due process. 12
The grounds for the recall of the appointments that petitioner raised in his supplemental
pleading to the consolidated appeal and motion for reconsideration are that: (1) the rules on
screening of applicants based on adopted criteria were not followed; (2) there was no
proper posting of notice of vacancy; and (3) the merit and fitness requirements set by the
civil service rules were not observed. These are grounds that he could have stated in his
order of recall, but which he did not. Neither did he raise said grounds in original appeal, but
only by way of a supplemental pleading. Failure of the petitioner to raise said grounds and
to present supporting documents constitute a waiver thereof, and the same arguments and
evidence can no longer be entertained on appeal before the CSC, nor in the Court of
Appeals, and much less in a petition for review before the Supreme Court. 13 In fine, the
raising of these factual issues for the first time in a pleading which is supplemental only to
an appeal is barred by estoppel. 14
Petitioner asks this Court to appreciate and consider these factual issues. It must be
recalled that the jurisdiction of the Supreme Court in a petition for review on certiorari under
Rule 45 of the Revised Rules of Court is limited to reviewing only errors of law, not of fact.
15 That is, of course, unless the factual findings assailed by petitioner are devoid of support
by the evidence on record or the impugned judgment is based on a misapprehension of
facts. 16
A thorough perusal of the records reveal that the CSC’s ruling is supported by the evidence
and the law. The fourteen (14) employees were duly appointed following two meetings of
the Personnel Selection Board held on May 31 and June 26, 1995. There is no showing that
any of the private respondents were not qualified for the positions they were appointed to.
Moreover, their appointments were duly attested to by the Head of the CSC field office at
Lucena City. By virtue thereof, they had already assumed their appointive positions even
before petitioner himself assumed his elected position as town mayor. Consequently, their
appointments took effect immediately and cannot be unilaterally revoked or recalled by
petitioner.chanrob1es virtua1 1aw 1ibrary
It has been held that upon the issuance of an appointment and the appointee’s assumption
of the position in the civil service, "he acquires a legal right which cannot be taken away
either by revocation of the appointment or by removal except for cause and with previous
notice and hearing" 17 Moreover, it is well-settled that the person assuming a position in the
civil service under a completed appointment acquires a legal, not just an equitable, right to
the position. This right is protected not only by statute, but by the Constitution as well, which
right cannot be taken away by either revocation of the appointment, or by removal, unless
there is valid cause to do so, provided that there is previous notice and hearing. 18
Petitioner admits that his very first official act upon assuming the position of town mayor
was to issue Office Order No. 95-01 which recalled the appointments of the private
respondents. There was no previous notice, much less a hearing accorded to the latter.
Clearly, it was petitioner who acted in undue haste to remove the private respondents
without regard for the simple requirements of due process of law. In doing so, he
overstepped the bounds of his authority. While he argues that the appointing power has the
sole authority to revoke said appointments, there is no debate that he does not have blanket
authority to do so. Neither can he question the CSC’s jurisdiction to affirm or revoke the
recall.
Josef Elvin Campos
Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative
Code specifically provides that "an appointment accepted by the appointee cannot be
withdrawn or revoked by the appointing authority and shall remain in force and in effect until
disapproved by the Commission." Thus, it is the CSC that is authorized to recall an
appointment initially approved, but only when such appointment and approval are proven to
be in disregard of applicable provisions of the civil service law and regulations. 19
Moreover, Section 10 of the same rule provides:chanrob1es virtual 1aw library
SECTION 10. An appointment issued in accordance with pertinent laws and rules shall take
effect immediately upon its issuance by the appointing authority, and if the appointee has
assumed the duties of the position, he shall be entitled to receive his salary at once without
awaiting the approval of his appointment by the Commission. The appointment shall remain
effective until disapproved by the Commission. In no case shall an appointment take effect
earlier than the date of its issuance.chanrob1es virtua1 1aw 1ibrary
Section 20 of Rule VI also provides:chanrob1es virtual 1aw library
SECTION 20. Notwithstanding the initial approval of an appointment, the same may be
recalled on any of the following grounds:chanrob1es virtual 1aw library
(a) Non-compliance with the procedures/criteria provided in the agency’s Merit Promotion
Plan;
(b) Failure to pass through the agency’s Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and employees
relative to promotion; or
(d) Violation of other existing civil service law, rules and regulations.
Accordingly, the appointments of the private respondents may only be recalled on the
above-cited grounds. And yet, the only reason advanced by the petitioner to justify the recall
was that these were "midnight appointments." The CSC correctly ruled, however, that the
constitutional prohibition on so-called "midnight appointments," specifically those made
within two (2) months immediately prior to the next presidential elections, applies only to the
President or Acting President.
If ever there were other procedural or legal requirements that were violated in implementing
the appointments of the private respondents, the same were not seasonably brought before
the Civil Service Commission. These cannot be raised for the first time on appeal.
WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED and the
Resolution of the Court of Appeals in CA-G.R. SP No. 42896 affirming CSC Resolutions
Nos. 96-2828 and 96-7527 is hereby AFFIRMED in toto.
SO ORDERED.
Kapunan, Quisumbing, Pardo, Buena and Sandoval-Gutierrez, JJ., concur.
Bellosillo, J., I concur for the reason that in this case bad faith cannot be presumed.
Puno, J., I concur on the ground that evidence of bad faith is weak.
Vitug, J., I concur; I perceive no clear irregularities in the appointments.

Separate Opinions
MENDOZA, J., dissenting:chanrob1es virtual 1aw library
By its decision in this case today, the majority sanctions the making of "midnight
Josef Elvin Campos
appointments" by local executives on the simplistic reasoning that Art. VII, §15 1 of the
Constitution applies only to Presidents and Acting Presidents. What the majority overlooks
is that Art. VII, §15 is simply an application of a broader principle that after the appointing
authority has lost the elections, his is the duty of a prudent caretaker of the office, and,
therefore, he should not fill positions in the government unless required by the imperatives
of public service. This rule binds all, including mayors, who are vested with the power of
appointment, and it flows from the principle that a public office is a public trust. 2 In Aytona
v. Castillo, 3 this Court did not need a specific constitutional or statutory provision to rule
that the making of 350 appointments after the proclamation of a new President and during
the last hours of the outgoing Chief Executive could not be upheld consistent with "good
faith, morality, and propriety." 4 So why should the majority in this case demand a specific
rule before it puts its foot down on this pernicious practice of making "midnight" or last-hour
appointments by local executives?
For such indeed are the 14 appointments made in this case to various positions in the
municipal government of Pagbilao, Quezon. They were made by Mayor Ma. Evelyn S.
Abeja after she had lost her bid for re-election. Despite the fact that the results of the
election were proclaimed on May 11, 1995, she made several appointments within the
space of 27 days, from June 1, 1995 to June 27, 1995, just three days before she bowed
out of the service. Even when there was no urgent need to do so, she went ahead and filled
the vacancies in the municipal government a few days before the new mayor, herein
petitioner Conrado L. de Rama, took office on June 30, 1995.
The majority justifies the appointments on the ground that they were made with the advice
of the Personnel Selection Board of the Municipality and attested by the Head of the Civil
Service Field Office in Lucena City. As petitioner points out, however, the 14 appointments
were considered in only two brief meetings of the board. Nine were passed upon by the
Personnel Selection Board in its meeting of June 16, 1995 which lasted only an hour, from
4:30 to 5:30 P.M. These were the appointments of the following respondents:chanrob1es
virtua1 1aw 1ibrary
Aristeo G. Catalla Gen. Services Officer
Elsa M. Marino Mun. Agriculturist
Graciela V. Glory Bookkeeper II
Ma. Petra Muffet Luce Accounting Clerk III
Felicidad T. Orinday Accounting Clerk II
Bernardita M. Mendoza Agricultural Technologist
Flordeliza S. Oriasel Clerk I
Jane Macatangay Day Care Worker I
Adolfo Glodoviza Utility Worker II
On June 27, 1995, the nine (9) respondents were issued their appointments by Mayor
Abeja.
The appointments of four other respondents were considered by the Personnel Selection
Board in its meeting of May 31, 1995, which lasted only an hour and ten minutes, from 3
P.M. to 4:10 P.M. These respondents are the following, with the dates of their appointments
set opposite their names:chanrob1es virtual 1aw library
Eladio P. Martinez Registration Officer I June 1, 1995
Divino M. de Jesus Bookbinder III June 1, 1995
Morell M. Ayala Accounting Clerk III June 16, 1995
Josef Elvin Campos
Daisy D. Porta Clerk IV June 27, 1995
In short, respondents’ appointments were made at two meetings of the Personnel Selection
Board, held on May 31, 1995 and June 16, 1995, each meeting lasting no more than an
hour. At both meetings of the board, Mayor Abeja presided as chairperson. There was just a
perfunctory compliance with legal requirements. In the case of respondent Florencio S.
Ramos, there is even no record that his appointment on June 27, 1995 as Utility Foreman
was passed by the Personnel Selection Board.
Yet, neither the Civil Service Commission nor the Court of Appeals found anything wrong or
irregular with the 14 appointments made by outgoing Mayor Abeja. The Civil Service
Commission said:chanrob1es virtual 1aw library
Sections 9 and 10, Rule V, Omnibus Rules Implementing Book V of the Revised
Administrative Code of 1987 provides as follows:chanrob1es virtual 1aw library
SECTION 9. An appointment accepted by the appointee cannot be withdrawn or revoked by

the appointing authority and shall remain in force and effect until disapproved by the
Commission. However, an appointment may be void from the beginning due to fraud on the
part of the appointee or because it was issued in violation of law.
SECTION 10. An appointment issued in accordance with pertinent laws or rules shall take
effect immediately upon its issuance by the appointing authority, and if the appointee has
assumed the duties of the position, he shall be entitled to receive his salary at once without
awaiting the approval of his appointment by the Commission. The appointment shall remain
effective until disapproved by the Commission. In no case shall an appointment take effect
earlier than the date of its issuance.
In the absence of any showing that these alleged midnight appointments were defective in
form and in substance, nor is there evidence presented to show that subject appointments
were issued in contravention of law or rules, these appointments are deemed valid and in
effect.chanrob1es virtua1 1aw 1ibrary
The Honorable Mayor anchored his request for the recall of subject appointments on the
fact that these appointments were issued in violation of Section 15, Article VII of the 1987
Constitution which provides as follows:chanrob1es virtual 1aw library
end of his term, as President or Acting President shall not make appointments, except
prejudice public service or endanger public safety. (Emphasis supplied)
Clearly, the constitutional provision cited by Mayor De Rama speaks of presidential

elections. The instant case involves local elections and no analogy can be made that what
is prohibited during the presidential elections is applicable also to local elections without any
express provision of law. Hence, the appointing authority can validly issue appointments
until his term has expired, as long as the appointee meets the qualification standards for the
position.
This ruling of the Civil Service Commission is echoed at pages 11-12 of the majority
opinion.
It is clear, however, that the Civil Service Commission did not find anything wrong or
irregular in the appointments of respondents because it failed to appreciate the fact that
"midnight appointments" — whether made by the President or by a mayor — are bad,
because they are made hurriedly, without due deliberation and careful consideration of the
needs of the office and the qualifications of the appointees, and by an appointing authority
on the eve of his departure from office. "Midnight appointments" are bad because, as the
Aytona decision puts it, they offend principles of "fairness, justice and righteousness." 5
They cannot be less bad because they are made at the local level, by mayors and other
local executives. The fact that in this case the appointments were subsequently attested by
the Civil Service Commission Field Office in Lucena City does not make them any less
odious.chanrob1es virtua1 1aw 1ibrary
Josef Elvin Campos
Public office — it cannot be too often repeated — is a public trust. As trustee of a public
office, the duty of Mayor Ma. Evelyn S. Abeja, as outgoing executive, was to preserve the
vacancies in the municipal government for her successor to fill or not to fill. What this Court
said in Aytona v. Castillo applies with equal force to Mayor Abeja:chanrob1es virtual 1aw
library
But it is common sense to believe that after the proclamation of the election of President
Macapagal, [outgoing President Garcia] was no more than a "care-taker" administration. He
was duty bound to prepare for the orderly transfer of authority to the incoming President,
and he should not do acts which he ought to know, would embarrass or obstruct the policies
of his successor. The time for debate had passed; the electorate had spoken. It was not for
him to use his powers as incumbent President to continue the political warfare that had
ended or to avail himself of presidential prerogatives to serve partisan purposes. The filling
up of vacancies in important positions, if few, and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for the appointment and the
appointee’s qualifications may undoubtedly be permitted. But the issuance of 350
appointments in one night and the planned induction of almost all of them a few hours
before the inauguration of the new President may, with some reason, be regarded by the
latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions irrespective of fitness and other conditions, and
thereby to deprive the new administration of an opportunity to make the corresponding
appointments. 6
Of course an outgoing executive retains the power of appointment up to the last day he is in
his office. As the above excerpt from Aytona says, however, the exercise of such power is
circumscribed by the requirement that the appointments made must be "few and so spaced
as to afford some assurance of deliberate action and careful consideration of the need for
the appointment and the appointee’s qualifications." 7 The hurried appointments of
respondents detract from that degree of good faith, morality, and propriety required for
appointments made by a faithful and prudent caretaker in order to be considered
valid.chanrob1es virtua1 1aw 1ibrary
For these reasons, I vote to reverse the decision of the Court of Appeals and to declare the
appointments of private respondents as null and void.
Davide, Jr., C.J., Melo, Panganiban, Gonzaga-Reyes and De Leon, Jr., JJ., concur.
Plaza v. CA (G.R. No. 138464, January 18, 2008)

G.R. No. 138464 January 18, 2008
HON. GOVERNOR DEMOCRITO O. PLAZA (deceased, to be substituted by incumbent
GOVERNOR VALENTINA G. PLAZA), DANILO S. SAMSON, FE TAN-CEBRIAN,
HONORABLE SB MEMBER (now Vice Governor) VIRGINIA M. G ETES, ADULFO A.
LLAGAS (as members of the Administrative Investigating Committee), FRANCISCO
U. FERNANDEZ, and JOSEFINA V. BAJADE, petitioners,
vs.
COURT OF APPEALS, GIL POL TAN, ELISA O. GILSANO, and EMMANUEL S.
QUISMUNDO, respondents.
DECISION
AZCUNA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court, as amended,
seeking to annul and set aside the Decision 1 dated February 13, 1997 of the Court of
Appeals (CA) in CA-G.R. SP No. 34359, as well as its Resolution 2 dated March 30, 1999,
denying petitioners’ motion for reconsideration. The questioned decision lifted the orders of
preventive suspension issued by petitioner Governor Democrito O. Plaza against private
respondents. The appellate court then ordered the reinstatement of private respondents to
their former positions with right to backwages but without prejudice to the continuation of the
administrative proceedings against them.
The relevant facts of the case are as follows:
A few months after his assumption as Governor of Agusan del Sur in 1992, petitioner
Democrito O. Plaza received separate administrative complaints against the following:
(a) Gil Pol Tan, Provincial Budget Officer, on the ensuing grounds:
Josef Elvin Campos
1. For having drawn cash advance out of the Local Government Funds
(General Funds) of the Provincial Government of Agusan del Sur amounting
to ONE HUNDRED SEVENTEEN NINE HUNDRED THIRTY FIVE
THOUSAND (P117,935.00) PESOS ONLY for allege [sic] OPERATIONAL
EXPENSES of the Provincial Government of Agusan del Sur barely three (3)
days before the May 11, 1992 synchronized elections, without passing the
same to pre-audit as one of the requirements under Commission on Audit
Circular No. 86-257 which states among others "ALL CASH ADVANCES,
except those granted for the payment of salaries and wages of officers or
employees, shall be pre-audited."
2. For making again a cash advance in an increasing amount to liquidate
his previous cash advance, which is a clear violation again of COA Circular
No. 86-257 which states among others "A cash advance for miscellaneous
expenses shall be reported on and liquidated as soon as, but not later than
thirty (30) days after, the purpose of which it was served" and "No cash
advance shall be allowed to any official or employee unless the previous cash
advance given to him is first settled or a proper accounting thereof is made
for the full amount of the cash advance" and "No cash advance shall be
granted for the purpose of liquidating a previous cash advance."
3. For making cash advances beyond his approved cash bond, again, a
violation to COA Memorandum Circular No. 86-257 which states that "No
Officer and employee shall be granted a cash advance unless he is properly
bonded in accordance with law or regulations. The amount of cash advance
which may be granted shall not exceed the maximum amount covered by his
bond."3
(b) Emmanuel S. Quismundo, Provincial Planning and Development Coordinator,
for inappropriate disbursements of the 20% Development Funds thereby constituting
technical malversation and other violations based on existing guidelines; 4 and
(c) Elisa O. Gilsano, Provincial Accountant, for neglect in the performance of duty. 5
Pursuant to Book I, Title Three, Section 86 of Republic Act (R.A.) No. 7160, otherwise
known as the Local Government Code (LGC) of 1991, Plaza issued Executive Order No.
01, Series of 1992,6 creating a Provincial Investigating Committee (PIC) composed of the
following petitioners:
Chairperson - Atty. Danilo Samson
Provincial Legal Officer
Secretary - Ms. Fe Tan-Cebrian
Acting Provincial Personnel Officer
Member - Hon. Virginia M. Getes
SP Member
- Mr. Adulfo A. Llagas
Asst. Provincial Treasurer
Officer-in-Charge
The PIC was established to conduct hearings on cases brought against appointive local
officials and employees, and was ordered to submit its findings and recommendations to the
local chief executive within 15 days from conclusion of the hearings. 7
On various dates in October 1992, petitioner Samson, acting as Chairperson of the
Administrative Investigating Committee, notified private respondents of the administrative
complaints. Tan allegedly committed a conduct prejudicial to the best interest of the
service,8 Gilsano was charged with neglect in the performance of duty, 9 and Quismundo
was allegedly liable for technical malversation, an act prejudicial to the best interest of the
service.10 Private respondents were required to answer in writing under oath within 72 hours
from receipt together with the affidavits of their witnesses, if any, and to state whether they
would opt for a formal investigation or would waive such right.
Instead of filing their answers, private respondents filed separate Motions to
Inhibit/Dismiss11 seeking to inhibit Samson on the ground that he had no authority under the
law to conduct the administrative investigations because his appointment as Provincial
Legal Officer had not been acted upon by the Sangguniang Panlalawigan of Agusan del
Sur, which concurrence is of utmost necessity to confer upon his appointment by the
Provincial Governor the imprimatur of legality and validity. Another issue raised by private
respondents was that they could not expect to be given due process and the cold neutrality
of an impartial committee.
Josef Elvin Campos
On October 26, 1992, Samson issued an Omnibus Order 12 denying private respondents’
motions to dismiss/inhibit. The fallo of the order reads:
WHEREFORE, the Motions to Dismiss/Inhibit filed by the respondents is hereby
DENIED.
Respondents however, is [sic] given an extension of time of five (5) days after receipt
of this order to file their Answer under oath not Motion for Reconsideration. Failure to
file Answer within the given period of time, respondents are hereby deemed to have
waived their right to present evidence in their behalf and the investigating committee
shall proceed to conduct its investigation process afterwhich [sic] will submit its
findings and recommendations to the office of the Provincial Governor.
SO ORDERED.13
Private respondents then opted to file, on November 6, 1992, an Omnibus Motion to
Dismiss the administrative charges.
On November 9, 1992, Plaza issued Memorandum Order Nos. 131-92 to 133-92 14 ordering
the preventive suspension of private respondents for a period of 60 days effective upon
receipt of the orders.
On December 3, 1992, private respondents filed before the Regional Trial Court (RTC) of
Prosperidad, Agusan del Sur, Branch VI, a Petition for Certiorari, Prohibition, Injunction,
with Preliminary Injunction and/or Restraining Order, docketed as Civil Case No. 897,
seeking to annul the preventive suspension imposed by Plaza, as well as the October 26,
1992 Omnibus Order denying their motions to inhibit/dismiss.
In an Order15 dated December 8, 1992, the trial court issued a temporary restraining order
and ordered Plaza to refrain from further continuing with the investigation and/or conducting
further proceedings on the subject administrative charge and from enforcing the assailed
orders and/or the effects thereof until further orders from the court.
On January 5, 1993, Plaza issued Memorandum No. 001-93, 16 the contents of which are as
follows:
Reports are received by this office that you have the intention to assume your
respective offices after the lapse of sixty (60) days from the date you are placed
under preventive suspension.
Please be reminded that the period of suspension stops running from the time you
filed the petition for Certiorari with the Court of Appeals and Regional Trial Court
Branch VI of this province pursuant to Section 85 par. (b) of R.A. 7160 otherwise
known as the Local Government Code of 1991.
DEMOCRITO O. PLAZA (Sgd.)
Provincial Governor17
On January 18, 1993, the RTC issued a writ of preliminary injunction 18 "to temporarily stop
the administrative fact finding until after the principal action shall have been resolved."
A motion for reconsideration19 of the RTC order dated January 18, 1993 was filed by private
respondents arguing that the act of imposing a preventive suspension had become a fait
accompli since the 60-day period from November 9, 1992, private respondents’ receipt of
the orders of preventive suspension, had already elapsed. They prayed for the nullification
of the orders of preventive suspension and the lifting of the legal effects of the
Memorandum dated January 5, 1993. This was denied by the trial court in an Order 20 dated
March 15, 1993.
Meantime, Resolution No. 11, Series of 1993 21 was issued by the Sangguniang
Panlalawigan of Agusan del Sur on February 11, 1993 reiterating the rejection of the
appointment of Samson as Provincial Legal Officer of the province for lack of the required 5-
year law practice.
On June 18, 1993, the trial court dismissed the petition, the dispositive portion of which
reads:
ACCORDINGLY, this Petition is, as it is hereby ordered DISMISSED for having been
filed prematurely and precipitately.
SO ORDERED.22
The RTC reasoned that private respondents failed to exhaust the available administrative
remedies since the proper forum to decide the dispute is the Civil Service Commission
(CSC) pursuant to Section 87 of R.A. No. 7160.
The trial court later denied private respondents’ motion for reconsideration in an
Order23 dated November 19, 1993.
Feeling aggrieved, private respondents immediately filed a notice of appeal to the CA. The
appeal was docketed as CA-G.R. SP No. 34359 by the appellate court. In their
Memorandum filed before the CA, private respondents raised the lone assignment of error
Josef Elvin Campos
that the controversy falls within the well-settled exceptions to the principle of non-exhaustion
of administrative remedies.
On February 13, 1997, the appellate court in CA-G.R. SP No. 34359 rendered a Decision,
the dispositive portion of which reads:
WHEREFORE, the appealed decision is SET ASIDE and in lieu thereof, judgment is
rendered lifting the orders of preventive suspension issued by then Gov. Democrito
Plaza against appellants. Appellants are reinstated to their previous positions with
right to backwages but without prejudice to the continuation of the administrative
proceedings against them.
SO ORDERED.24
The CA opined that Samson’s authority as chairman of the PIC is not invalidated by the lack
of concurrence of the Sangguniang Panlalawigan in his appointment as the Provincial Legal
Officer. Moreover, the preventive suspension of private respondents may be ordered even
without a hearing as such suspension is not a penalty but only a preliminary step in an
administrative investigation. It likewise ruled that the filing of the petition for certiorari and
prohibition before the RTC was not a delay which would interrupt the running of the period
of preventive suspension. Lastly, the CA pronounced that to sanction preventive suspension
pending resolution of an administrative case is equivalent to indefinite suspension which the
Constitution prohibits.
On March 30, 1999, the CA denied25 for lack of merit the motion for reconsideration filed by
private respondents.
Meanwhile, a series of events occurred during the pendency of the appeal and even after
the promulgation of the appellate court’s decision. On August 5, 1993, the members of
the Sangguniang Panlalawigan of Agusan del Sur discovered the existence of CSC
Resolution No. 93-1765 dated May 17, 1993, designating petitioner Fe Tan-Cebrian as
substitute Provincial Government Department Head of the Office of the Provincial Planning
and Development Coordinator. The members of the sanggunian then filed a
petition26 before the CSC seeking to set aside the aforesaid resolution and to order the
immediate reinstatement of Quismundo and the payment of his backwages. Similar
petitions were also filed by the members of the sanggunian praying for the immediate
reinstatement of private respondents Tan and Gilsano with payment of back salaries.
On January 28, 1997, the CSC issued Resolution No. 970686 27 directing the incumbent
Governor of Agusan del Sur to immediately reinstate private respondents to their former
positions without prejudice to the continuance of the administrative cases against them. A
motion for reconsideration was filed by the Governor of Agusan del Sur but the same was
denied in CSC Resolution No. 97406528 dated October 14, 1997.
Undaunted, the provincial governor filed before the CA a petition for review with temporary
restraining order and injunction docketed as CA-G.R. SP No. 46650 praying that an order
be issued enjoining the CSC from implementing Resolutions Nos. 970686 and 974065.
By virtue of CSC Resolution No. 974065, private respondents wrote 29 the incumbent
governor informing the latter that they are assuming office on December 1, 1997. However,
then Provincial Governor Alex G. Bascug issued Office Order No. 016-97, Series of
199730 dated December 1, 1997 detailing private respondents to the Agusan del Sur
Economic and Business Assistance Center (ASERBAC). On December 29, 1997, counsel
for private respondents informed Governor Bascug through a letter 31 that he has advised his
clients to cease and desist from reporting to work as the detail to ASERBAC was in reckless
and wanton contravention of the order of the CA dated February 13, 1997.
Petitioners now seek relief from this Court via a petition for review on certiorari.
The following are the issues raised by petitioners:
10. Whether or not the Court of Appeals erred in ruling that the appellants [sic] filing
of Special Civil Action for Prohibition and with Preliminary Injunction and/or
Restraining Order before the RTC is a delay which does not interrupt the running of
the period of suspension;
10.a Whether or not the Court of Appeals erred in ruling that the preventive
suspension imposed against Petitioner-Appellants [herein private
respondents] should be lifted;
10.b Whether or not the Court of Appeals erred in ruling that Petitioner-
Appellants should immediately be reinstated;
10.c Whether or not the Court of Appeals erred in ruling that Petitioner-
Appellants are entitled to backwages during the entire period of their
suspension;
10.d Whether or not the Court of Appeals erred in ruling that the preventive
suspension was unjustified.32
Josef Elvin Campos
Petitioners argue that private respondents have not yet been exonerated and to grant them
the right to back salaries is, at the moment, premature. It is likewise their contention that the
undue delay in the investigation of private respondents was caused by them and shall be
deducted from the period of their suspension as provided in Section 85(b) 33 of R.A. No.
7160. In addition, petitioners explain that Section 88 of R.A. No. 7160 provides that a
suspended respondent is entitled to all the rights and privileges appurtenant to his position
only when he is exonerated.
In their Amended Petition for Review 34 filed on September 16, 1999, and subsequently in
the Reply35 filed on May 2, 2000, petitioners argue that the only pertinent issue to be
resolved is whether or not the CA’s award of backwages is in accordance with law and the
applicable jurisprudence because of the following developments:
1. On July 26, 1999, petitioner Governor Valentina G. Plaza through Provincial
Administrator Dante Luz Viacrucis sent respondents a letter, certified copy attached
as Annex "M", stating that "pursuant to the Resolution of the Civil Service
Commission, you are again hereby enjoined to report for work not later than August
2, 1999."
2. On August 2, 1999, respondents complied by reporting for work, formally notifying
the Governor that "in compliance to your Memorandum dated July 26, 1999, we are
respectfully informing you that we, the undersigned, are assuming the duties and
responsibilities of our respective offices today, August 2, 1999." A copy of said letter
is hereto attached as Annex "N".36
Similarly, the appellate court issued, on November 26, 1999, a Decision in CA-G.R. SP No.
46650, the fallo of which reads:
WHEREFORE, foregoing premises considered, finding herein petition to be
meritorious, the Resolution No. 97-0686 of the Civil Service Commission, dated
January 28, 1997 is hereby SET ASIDE and a new one is entered as follows:
1. Ordering that the counting of the sixty (60) day preventive suspension of the
private respondents Elisa O. Gilsano, Gil Pol Tan and Emmanuel Quizmundo [sic]
shall start from the day the decision of the Court of Appeals on [sic] CA-G.R. SP No.
34359 dated June 6, 1991 [sic] have become final and executory.
2. Ordering further, thereafter, that suspension of the said employees shall be lifted
and the incumbent Provincial Governor is directed to reinstate the above mentioned
private respondents to their former positions as Provincial Accountant, Provincial
Budget Officer, and Provincial Planning and Development Coordinator, respectively,
without prejudice to the continuance of the administrative cases against them.
No pronouncement as to cost.
SO ORDERED.37
As correctly raised by the petitioners, the only remaining issues to be determined by the
Court are whether the private respondents are entitled to backwages during the entire
period of their suspension and, concomitantly, whether the CA erred in ruling that the
preventive suspension was unjustified. The other issues, as conceded by the parties, have
become moot and academic in view of the actual reinstatement of private respondents last
August 2, 1999.
The Court rules that private respondents’ claim for back salaries is untenable because their
suspension was authorized by law and they have not been absolved of the administrative
charges filed against them.38 In Gloria v. Court of Appeals,39 this Court had the occasion to
clarify that the payment of salaries corresponding to the period when an employee is not
allowed to work may be decreed if he is found innocent of the charges which caused his
suspension and when the suspension is unjustified.
Stated otherwise, the preventive suspension of the private respondents is authorized by
R.A. No. 7160. Section 85 (a) of the LGC of 1991 states:
SEC. 85. Preventive Suspension of Appointive Local Officials and Employees. — (a)
The local chief executives may preventively suspend for a period not exceeding sixty
(60) days any subordinate official or employee under his authority pending
investigation if the charge against such official or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty, or if there is
reason to believe that the respondent is guilty of the charges which would warrant
his removal from the service.
Clearly, the law provides for the preventive suspension of appointive local officials and
employees pending investigation of the charges against them. The suspension given to
private respondents cannot, therefore, be considered unjustified for it is one of those
sacrifices which holding a public office requires for the public good. 40 To be entitled to back
Josef Elvin Campos
salaries, private respondents must not only be found innocent of the charges, but their
suspension must likewise be unjustified.
WHEREFORE, the Decision of the Court of Appeals dated February 13, 1997 in CA-G.R.
SP No. 34359, and its Resolution therein dated March 30, 1999 are hereby MODIFIED. The
Provincial Investigating Committee is DIRECTED to reconvene and proceed with the
administrative cases filed against private respondents Gil Pol Tan, Elisa O. Gilsano, and
Emmanuel S. Quismundo, and to resolve the cases with all reasonable dispatch. The award
of backwages is DELETED.
No costs.
SO ORDERED.
Puno, C.J., Chairperson, Sandoval-Gutierrez, Corona, Leonardo-de Castro, JJ., concur.
Atienza v. Villarosa (G.R. No. 161081, 10 May 2005)

G.R. No. 161081 May 10, 2005
RAMON M. ATIENZA, in his capacity as Vice-Governor of the Province of Occidental
Mindoro, petitioner,
vs.
JOSE T. VILLAROSA, in his capacity as Governor of the Province of Occidental
Mindoro, respondent.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review on certiorari filed by Ramon M. Atienza, in his
capacity as Vice-Governor of the Province of Occidental Mindoro, seeking to reverse and
set aside the Decision1 dated November 28, 2003 of the Court of Appeals in CA-G.R. SP
No. 72069. The assailed decision dismissed the petition for prohibition under Rule 65 of the
Rules of Court filed by petitioner Atienza which had sought to enjoin the implementation of
the Memoranda dated June 25, 2002 and July 1, 2002 issued by Jose T. Villarosa,
Governor of the same province.
The present case arose from the following undisputed facts:
Petitioner Atienza and respondent Villarosa were the Vice-Governor and Governor,
respectively, of the Province of Occidental Mindoro. On June 26, 2002, the petitioner Vice-
Governor received the Memorandum dated June 25, 2002 issued by the respondent
Governor concerning the "AUTHORITY TO SIGN PURCHASE ORDERS OF SUPPLIES,
MATERIALS, EQUIPMENT[S], INCLUDING FUEL, REPAIRS AND MAINTENANCE OF
THE SANGGUNIANG PANLALAWIGAN." The said memorandum reads:
For proper coordination and to ensure efficient and effective local government
administration particularly on matters pertaining to supply and property management,
effective immediately, all Purchase Orders issued in connection with the
procurement of supplies, materials and equipment[s] including fuel, repairs and
maintenance needed in the transaction of public business or in the pursuit of any
undertaking, project or activity of the Sangguniang Panlalawigan, this province, shall
be approved by the undersigned in his capacity as the local chief executive of the
province.
The provision of DILG Opinion No. 148-1993 which states that the authority to sign
Purchase Orders of supplies, materials and equipment[s] of the Sanggunian belongs
to the local chief executive, serves as basis of this memorandum.
For strict compliance.2
In reply to the above memorandum, the petitioner Vice-Governor wrote the respondent
Governor stating that:
We are of the opinion that … purchase orders for supplies, materials and equipment
are included under those as authorized for signature by the Vice-chief executive of
the Sanggunian on the basis of the DILG Opinion No. 96-1995 as affirmed by the
COA Opinions on June 28, April 11 and February 9, 1994 and coursing it to the
Governor for his approval is no longer necessary, the fact that [Secs.] 466 and 468,
RA 7160 already provides for the separation of powers between the executive and
legislative. Such authority even include everything necessary for the legislative
research program of the Sanggunian.3
Unimpressed, the respondent Governor issued the Memorandum dated July 1, 2002
relating to the "TERMINATION OF CONTRACT OF SERVICES OF CASUAL/JOB ORDER
EMPLOYEES AND REAPPOINTMENT OF THE RESPECTIVE RECOMMENDEES." The
said memorandum reads:
For faithful and appropriate enforcement and execution of laws and issuances and to
promote efficiency in the government service, effective immediately, all existing
Josef Elvin Campos
contract of employment – casual/job order basis and reappointment of the
recommendees – entered into by Vice-Governor Ramon M. Atienza are hereby
terminated for being unauthorized.
Aside from being signed by the unauthorized signatory, the following facts regarding
the appointments were considered:
1. The appointment of 28 clerks – on top of existing permanent employees – is a
clear manifestation of an excessive and bloated bureaucracy;
2. The appointment of an X-ray Technician detailed at the Provincial Health Office
and some clerks detailed at various offices in the province were not proper to be
assigned by the Vice-Governor;
3. The appointment of 30 messengers, utility workers and drivers ran counter to COA
Opinion as cited in the letter of the undersigned dated 28 June 2002, addressed to
the Vice-Governor.
However, in order to accommodate the Vice-Governor and the members of the
Sangguniang Panlalawigan, the undersigned, in his capacity as the local chief
executive of the province, will allow four (4) casual/job order employees to be
assigned to the Vice-Governor and one (1) casual/job order employee to be
assigned to each member of the Sangguniang Panlalawigan.
The Vice-Governor and all the Sanggunian Members are hereby directed to submit
immediately the names of their recommendees to the undersigned for immediate
approval of their respective appointments.
Please be guided accordingly.4
On July 3, 2002, the respondent Governor issued another Memorandum regarding the
"ENFORCIBILITY (sic) OF PREVIOUS MEMORANDA ISSUED ON JUNE 20, 26 AND
JULY 1, 2002." It provides that:
Please be properly advised that the Memoranda dated June 20, 26 and July 1, 2002
issued by the undersigned regarding the issuance of permit to travel and authority to
sign Purchase Orders of supplies, materials, equipment, including fuel, repairs and
maintenance of the Sangguniang Panlalawigan, is to be strictly adhered to for
compliance.
Likewise for strict compliance is the Memorandum dated July 1, 2002 with reference
to the Cancellation of the Appointment of Casual/Job Order Employees of the
Sangguniang Panlalawigan Members/Office of the Vice-Governor previously signed
by Vice-Governor Ramon M. Atienza.
Please be guided accordingly.5
In his Letter dated July 9, 2002, the petitioner Vice-Governor invoked the principle of
separation of powers as applied to the local government units, i.e., the respondent, as the
Governor, the head of the executive branch, and the petitioner, as the Vice-Governor, the
head of the legislative branch, which is the Sangguniang Panlalawigan. The petitioner Vice-
Governor reiterated his request for the respondent to make a "deeper study" on the matter
before implementing his memoranda. The request, however, went unheeded as the
respondent Governor insisted on obliging the department heads of the provincial
government to comply with the memoranda.
The petitioner Vice-Governor thus filed with the Court of Appeals the petition for prohibition
assailing as having been issued with grave abuse of discretion the respondent Governor's
Memoranda dated June 25, 2002 and July 1, 2002. The petitioner Vice-Governor claimed
that these memoranda excluded him from the use and enjoyment of his office in violation of
the pertinent provisions of Republic Act No. 7160, or the Local Government Code of 1991,
and its implementing rules and regulations. It was prayed that the respondent Governor be
enjoined from implementing the assailed memoranda.
The appellate court, in its Decision dated November 28, 2003, dismissed the petition for
prohibition. Citing Section 3446 of Rep. Act No. 7160, the CA upheld the authority of the
respondent Governor to issue the Memorandum dated June 25, 2002 as it recognized his
authority to approve the purchase orders. The said provision provides in part that "approval
of the disbursement voucher by the local chief executive himself shall be required whenever
local funds are disbursed."
The CA explained that Section 466(a)(1) 7 of the same Code, relied upon by the petitioner
Vice-Governor, speaks of the authority of the Vice-Governor to sign "all warrants drawn on
the public treasury for all expenditures appropriated for the operation of the sangguniang
panlalawigan." In declaring this provision inapplicable, the CA reasoned that the approval of
purchase orders is different from the power of the Vice-Governor to sign warrants drawn
against the public treasury.
Section 3618 was, likewise, held to be inapplicable ratiocinating, thus:
Josef Elvin Campos
[R]equisitioning, which is provided under Section 361 of RA 7160, is the act of
requiring that something be furnished. In the procurement function, it is the
submission of written requests for supplies and materials and the like. It could be
inferred that, in the scheme of things, approval of purchase requests is different from
approval of purchase orders. Thus, the inapplicability of Section 361.
Anent the Memorandum dated July 1, 2002, the CA ruled that the issue on whether it could
be enjoined had already been rendered moot and academic. The CA pointed out that the
subject of the said memorandum could no longer be enjoined or restrained as the
termination of the employees had already been effected. It opined that where the act sought
to be enjoined in the prohibition proceedings had already been performed and there is
nothing more to restrain, the case is already moot and academic.
The petitioner Vice-Governor now seeks recourse to this Court alleging that the appellate
court committed reversible error in ruling that it is the Governor, and not the Vice-Governor,
who has the authority to sign purchase orders of supplies, materials, equipment, including
fuel, repairs and maintenance of the Sangguniang Panlalawigan. The petitioner Vice-
Governor, likewise, takes exception to the holding of the CA that the issue relating to the
July 1, 2002 Memorandum had been rendered moot and academic. He points out that the
appointment of casual/job order employees is exercised by the appointing authority every
six months in the case of casual employees and per job order as to job order employees.
Thus, while the July 1, 2002 Memorandum had already been implemented, what is being
sought to be enjoined is the respondent Governor's continued usurpation of the petitioner
Vice-Governor's authority to appoint the employees of the Sangguniang
Panlalawigan under the pertinent provisions of Rep. Act No. 7160.
For his part, the respondent Governor maintains that his Memoranda dated June 25, 2002
and July 1, 2002 are valid. He asserts that the approval of purchase orders is different from
the power of the Vice-Governor to sign warrants drawn against the provincial treasury under
Section 466(a)(1) of Rep. Act No. 7160. Rather, he insists on the application of the last
clause in Section 344 which states that the approval of the disbursement by the local chief
executive is required whenever local funds are disbursed.
The respondent Governor likewise defends the validity of the Memorandum dated July 1,
2002 stating that it was issued upon finding that the petitioner Vice-Governor appointed,
among others, 28 clerks on top of the existing permanent employees resulting in an
excessive and bloated bureaucracy. He concedes the appointing power of the Vice-
Governor but submits that this is limited to the employees of the Sangguniang
Panlalawigan and that he is not authorized to appoint officials and employees of the Office
of the Vice-Governor.
As correctly presented by the appellate court, the issues for resolution in this case are:
A. Who between the petitioner and the respondent is authorized to approve
purchase orders issued in connection with the procurement of supplies, materials,
equipment, including fuel, repairs and maintenance of the Sangguniang
Panlalawigan?
B. Does respondent Villarosa, as local chief executive, have the authority to
terminate or cancel the appointments of casual/job order employees of the
Sangguniang Panlalawigan Members and the Office of the Vice-Governor? 9
Before resolving the foregoing issues, it is noted that petitioner Atienza and respondent
Villarosa had ceased to be the Vice-Governor and Governor, respectively, of the Province
of Occidental Mindoro effective June 30, 2004 when the newly-elected officials of the
province took their oaths of offices. The petitioner Vice-Governor did not run for re-election
during the May 2004 elections while the respondent Governor did not succeed in his re-
election bid. The expiration of their terms of offices has effectively rendered the case moot.
However, even in cases where supervening events had made the cases moot, the Court did
not hesitate to resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar and the public. 10 In this case, there is compelling reason
for the Court to resolve the issues presented in order to clarify the scope of the respective
powers of the Governor and Vice-Governor under the pertinent provisions of the Local
Government Code of 1991.
To resolve the substantive issues presented in the instant case, it is well to recall that Rep.
Act No. 7160 was enacted to give flesh to the constitutional mandate to "provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanism of recall, initiative and referendum, allocate
Josef Elvin Campos
and functions and duties of local officials, and all matters relating to the organization and
operation of the local units."11
In this connection, the provisions of Rep. Act No. 7160 are anchored on principles that give
effect to decentralization. Among these principles are: [t]here shall be an effective allocation
among the different local government units of their respective powers, functions,
responsibilities, and resources; [t]here shall be established in every local government unit
an accountable, efficient, and dynamic organizational structure and operating mechanism
that will meet the priority needs and service requirements of its communities; [p]rovinces
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; and [e]ffective mechanisms for
ensuring the accountability of local government units to their respective constituents shall
be strengthened in order to upgrade continually the quality of local leadership. 12
With these guideposts, the Court shall now address the issue on who between the
Governor and Vice-Governor is authorized to approve purchase orders issued in connection
with the procurement of supplies, materials, equipment, including fuel, repairs and
maintenance of the Sangguniang Panlalawigan.
We hold that it is the Vice-Governor who has such authority.
Under Rep. Act No. 7160, local legislative power for the province is exercised by
the Sangguniang Panlalawigan13 and the Vice-Governor is its presiding officer. 14 Being
vested with legislative powers, the Sangguniang Panlalawigan enacts ordinances,
resolutions and appropriates funds for the general welfare of the province in accordance
with the provisions of Rep. Act No. 7160. 15 The same statute vests upon the Vice-Governor
the power to:
(1) Be the presiding officer of the sangguniang panlalawigan and sign all warrants
drawn on the provincial treasury for all expenditures appropriated for the operation of
the sangguniang panlalawigan. 16
Further, Section 344 provides:
Sec. 344. Certification on, and Approval of, Vouchers. – No money shall be
disbursed unless the local budget officer certifies to the existence of appropriation
that has been legally made for the purpose, the local accountant has obligated said
appropriation, and the local treasurer certifies to the availability of funds for the
purpose. Vouchers and payrolls shall be certified to and approved by the head of the
department or office who has administrative control of the fund concerned, as to
validity, propriety and legality of the claim involved. Except in cases of
disbursements involving regularly recurring administrative expenses such as payrolls
for regular or permanent employees, expenses for light, water, telephone and
telegraph services, remittances to government creditor agencies such as the GSIS,
SSS, LBP, DBP, National Printing Office, Procurement Service of the DBM and
others, approval of the disbursement voucher by the local chief executive himself
shall be required whenever local funds are disbursed.
In cases of special or trust funds, disbursements shall be approved by the
administrator of the fund.
In case of temporary absence or incapacity of the department head or chief of office,
the officer next-in-rank shall automatically perform his function and he shall be fully
responsible therefor.
Reliance by the CA on the clause "approval of the disbursement voucher by the local chief
executive himself shall be required whenever local funds are disbursed" of the above
section (Section 344) to rule that it is the Governor who has the authority to approve
purchase orders for the supplies, materials or equipment for the operation of
the Sangguniang Panlalawigan is misplaced. This clause cannot prevail over the more
specific clause of the same provision which provides that "vouchers and payrolls shall be
certified to and approved by the head of the department or office who has administrative
control of the fund concerned." The Vice-Governor, as the presiding officer of
the Sangguniang Panlalawigan, has administrative control of the funds of the said body.
Accordingly, it is the Vice-Governor who has the authority to approve disbursement
vouchers for expenditures appropriated for the operation of the Sangguniang Panlalawigan.
On this point, Section 39 of the Manual on the New Government Accounting System for
Local Government Units, prepared by the Commission on Audit (COA), is instructive:
Sec. 39. Approval of Disbursements. – Approval of disbursements by the Local Chief
Executive (LCE) himself shall be required whenever local funds are disbursed,
except for regularly recurring administrative expenses such as: payrolls for regular or
permanent employees, expenses for light, water, telephone and telegraph services,
Josef Elvin Campos
remittances to government creditor agencies such as GSIS, BIR, PHILHEALTH,
LBP, DBP, NPO, PS of the DBM and others, where the authority to approve may be
delegated. Disbursement vouchers for expenditures appropriated for the operation of
the Sanggunian shall be approved by the provincial Vice Governor, the city Vice-
Mayor or the municipal Vice-Mayor, as the case may be.17
While Rep. Act No. 7160 is silent as to the matter, the authority granted to the Vice-
Governor to sign all warrants drawn on the provincial treasury for all expenditures
appropriated for the operation of the Sangguniang Panlalawigan as well as to approve
disbursement vouchers relating thereto necessarily includes the authority to approve
purchase orders covering the same applying the doctrine of necessary implication. This
doctrine is explained, thus:
No statute can be enacted that can provide all the details involved in its application.
There is always an omission that may not meet a particular situation. What is
thought, at the time of enactment, to be an all-embracing legislation may be
inadequate to provide for the unfolding of events of the future. So-called gaps in the
law develop as the law is enforced. One of the rules of statutory construction used to
fill in the gap is the doctrine of necessary implication. The doctrine states that what is
implied in a statute is as much a part thereof as that which is expressed. Every
statute is understood, by implication, to contain all such provisions as may be
necessary to effectuate its object and purpose, or to make effective rights, powers,
privileges or jurisdiction which it grants, including all such collateral and subsidiary
consequences as may be fairly and logically inferred from its terms. Ex necessitate
legis. And every statutory grant of power, right or privilege is deemed to include all
incidental power, right or privilege. This is so because the greater includes the
lesser, expressed in the maxim, in eo plus sit, simper inest et minus.18
Warrants are "order[s] directing the treasurer of the municipality to pay money out of funds
in city treasury which are or may become available for purpose specified to designated
person[s]."19 Warrants of a municipal corporation are generally orders payable when funds
are found. They are issued for the payment of general municipal debts and expenses
subject to the rule that they shall be paid in the order of presentation. 20
The ordinary meaning of "voucher" is a document which shows that services have been
performed or expenses incurred. It covers any acquittance or receipt discharging the person
or evidencing payment by him. When used in connection with disbursement of money, it
implies some instrument that shows on what account or by what authority a particular
payment has been made, or that services have been performed which entitle the party to
whom it is issued to payment.21
Purchase order, on the other hand, is "an authorization by the issuing party for the recipient
to provide materials or services for which issuing party agrees to pay; it is an offer to buy
which becomes binding when those things ordered have been provided." 22
When an authorized person approves a disbursement voucher, he certifies to the
correctness of the entries therein, among others: that the expenses incurred were
necessary and lawful, the supporting documents are complete and the availability of cash
therefor. Further, the person who performed the services or delivered the supplies,
materials or equipment is entitled to payment. 23 On the other hand, the terms and conditions
for the procurement of supplies, materials or equipment, in particular, are contained in a
purchase order. The tenor of a purchase order basically directs the supplier to deliver the
articles enumerated and subject to the terms and conditions specified therein. 24 Hence, the
express authority to approve disbursement vouchers and, in effect, authorize the payment
of money claims for supplies, materials or equipment, necessarily includes the authority to
approve purchase orders to cause the delivery of the said supplies, materials or equipment.
Since it is the Vice-Governor who approves disbursement vouchers and approves the
payment for the procurement of the supplies, materials and equipment needed for the
operation of the Sangguniang Panlalawigan, then he also has the authority to approve the
purchase orders to cause the delivery of the said supplies, materials or equipment.
Indeed, the authority granted to the Vice-Governor to sign all warrants drawn on the
provincial treasury for all expenditures appropriated for the operation of the Sangguniang
Panlalawigan as well as to approve disbursement vouchers relating thereto is greater and
includes the authority to approve purchase orders for the procurement of the supplies,
materials and equipment necessary for the operation of the Sangguniang Panlalawigan.
Anent the second issue, the appellate court likewise committed reversible error in holding
that the implementation of the Memorandum dated July 1, 2002 had rendered the petition
moot and academic. It is recognized that courts will decide a question otherwise moot and
academic if it is "capable of repetition yet evading review." 25 Even if the employees whose
Josef Elvin Campos
contractual or job order employment had been terminated by the implementation of the July
1, 2002 Memorandum may no longer be reinstated, still, similar memoranda may be issued
by other local chief executives. Hence, it behooves the Court to resolve whether the
Governor has the authority to terminate or cancel the appointments of casual/job order
employees of the Sangguniang Panlalawigan and the Office of the Vice-Governor.
We hold that the Governor, with respect to the appointment of the officials and employees
of the Sangguniang Panlalawigan, has no such authority.
Among the powers granted to the Governor under Section 465 of Rep. Act No. 7160 are:
Sec. 465. The Chief Executive: Powers, Duties, Functions and Compensation.– (a)
The provincial governor, as the chief executive of the provincial government, shall
exercise such powers and perform such duties and functions as provided by this
Code and other laws.
(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the province and its inhabitants pursuant to Section 16 of this
Code, the provincial governor shall:
…
(v) Appoint all officials and employees whose salaries and wages are wholly
or mainly paid out of provincial funds and whose appointments are not
otherwise provided for in this Code, as well as those he may be authorized by
law to appoint.
On the other hand, Section 466 vests on the Vice-Governor the power to, among others:
(2) Subject to civil service law, rules and regulations, appoint all officials and
employees of the sangguniang panlalawigan, except those whose manner of
appointment is specifically provided in this Code.
Thus, while the Governor has the authority to appoint officials and employees whose
salaries are paid out of the provincial funds, this does not extend to the officials and
employees of the Sangguniang Panlalawigan because such authority is lodged with the
Vice-Governor. In the same manner, the authority to appoint casual and job order
employees of the Sangguniang Panlalawigan belongs to the Vice-Governor.
The authority of the Vice-Governor to appoint the officials and employees of
the Sangguniang Panlalawigan is anchored on the fact that the salaries of these employees
are derived from the appropriation specifically for the said local legislative body. Indeed, the
budget source of their salaries is what sets the employees and officials of the Sangguniang
Panlalawigan apart from the other employees and officials of the province. Accordingly, the
appointing power of the Vice-Governor is limited to those employees of the Sangguniang
Panlalawigan, as well as those of the Office of the Vice-Governor, whose salaries are paid
out of the funds appropriated for the Sangguniang Panlalawigan. As a corollary, if the salary
of an employee or official is charged against the provincial funds, even if this employee
reports to the Vice-Governor or is assigned to his office, the Governor retains the authority
to appoint the said employee pursuant to Section 465(b)(v) of Rep. Act No. 7160.
However, in this case, it does not appear whether the contractual/job order employees,
whose appointments were terminated or cancelled by the Memorandum dated July 1, 2002
issued by the respondent Governor, were paid out of the provincial funds or the funds of
the Sangguniang Panlalawigan. Nonetheless, the validity of the said memorandum cannot
be upheld because it absolutely prohibited the respondent Vice-Governor from exercising
his authority to appoint the employees, whether regular or contractual/job order, of
the Sangguniang Panlalawigan and restricted such authority to one of recommendatory
nature only.26 This clearly constituted an encroachment on the appointment power of the
respondent Vice- Governor under Section 466(a)(2) of Rep. Act No. 7160.
At this juncture, it is well to note that under Batas Pambansa Blg. 337, the Local
Government Code prior to Rep. Act No. 7160, the Governor was the presiding officer of
the Sangguniang Panlalawigan:
Sec. 205. Composition. (1) Each provincial government shall have a provincial
legislature hereinafter known as the sangguniang panlalawigan, upon which shall be
vested the provincial legislative power.
(2) The sangguniang panlalawigan shall be composed of the governor, vice-
governor, elective members of the said sanggunian, and the presidents of
the katipunang panlalawigan and the kabataang barangay provincial federation who
shall be appointed by the President of the Philippines.
…
Sec. 206. Sessions. –
(3) The governor, who shall be the presiding officer of the sangguniang
panlalawigan, shall not be entitled to vote except in case of a tie.
Josef Elvin Campos
…
With Rep. Act No. 7160, the union of legislative and executive powers in the office of the
local chief executive under the BP Blg. 337 has been disbanded, so that either department
now comprises different and non-intermingling official personalities with the end in view of
ensuring a better delivery of public service and provide a system of check and balance
between the two.27
Senator Aquilino Pimentel, the principal author of Rep. Act No. 7160, explained that "the
Vice-Governor is now the presiding officer of the Sangguniang Panlalawigan. The City Vice-
Mayor presides at meetings of the Sangguniang Panlungsod and the Municipal Vice-Mayor
at the sessions of the Sangguniang Bayan. The idea is to distribute powers among elective
local officials so that the legislative, which is the Sanggunian, can properly check the
executive, which is the Governor or the Mayor and vice versa and exercise their functions
without any undue interference from one by the other."28
The avowed intent of Rep. Act. No. 7160, therefore, is to vest on the Sangguniang
Panlalawigan independence in the exercise of its legislative functions vis-a-vis the
discharge by the Governor of the executive functions. The Memoranda dated June 25, 2002
and July 1, 2002 of the respondent Governor, which effectively excluded the petitioner Vice-
Governor, the presiding officer of the Sangguniang Panlalawigan, from signing the purchase
orders for the procurement of supplies, materials or equipment needed for the operation of
the Sangguniang Panlalawigan as well as from appointing its casual and job order
employees, constituted undue interference with the latter's functions. The assailed
memoranda are clearly not in keeping with the intent of Rep. Act No. 7160 and their
implementation should thus be permanently enjoined.
WHEREFORE, the petition is GRANTED. The Memoranda dated June 25, 2002 and July 1,
2002 issued by respondent Governor Jose T. Villarosa are NULL AND VOID.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-
Morales, Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur.
Puno, J., on sick leave.
Panganiban, and Sandoval-Gutierrez, JJ., on official leave.
People v. Sandiganbayan (G.R. No. 164185, 23 July 2008)

G.R. No. 164185 July 23, 2008
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A.
VILLAPANDO, Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari filed by the Office of the Ombudsman through the Office of the
Special Prosecutor assails the May 20, 2004 Decision 1 of the Sandiganbayan, Fourth
Division, in Criminal Case No. 27465, granting private respondent Alejandro A. Villapando’s
Demurrer to Evidence2 and acquitting him of the crime of unlawful appointment under Article
2443 of the Revised Penal Code.
The facts culled from the records are as follows:
During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente,
Palawan. Orlando M. Tiape (now deceased), a relative of Villapando’s wife, ran for
Municipal Mayor of Kitcharao, Agusan del Norte. Villapando won while Tiape lost.
Thereafter, on July 1, 1998, Villapando designated Tiape as Municipal Administrator of the
Municipality of San Vicente, Palawan.4 A Contract of Consultancy5 dated February 8,
1999 was executed between the Municipality of San Vicente, Palawan and Tiape whereby
the former employed the services of Tiape as Municipal Administrative and Development
Planning Consultant in the Office of the Municipal Mayor for a period of six months from
January 1, 1999 to June 30, 1999 for a monthly salary of ₱26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando
and Tiape for violation of Article 244 of the Revised Penal Code before the Office of the
Deputy Ombudsman for Luzon.6 The complaint was resolved against Villapando and Tiape
and the following Information7 dated March 19, 2002 charging the two with violation of
Article 244 of the Revised Penal Code was filed with the Sandiganbayan:
xxxx
That on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente,
Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, ALEJANDRO A. VILLAPANDO, a public officer, being then the Municipal Mayor of
Josef Elvin Campos
San Vicente, Palawan, committing the crime herein charged, in relation to and taking
advantage of his official functions, conspiring and confederating with accused Orlando M.
Tiape, did then and there wilfully, unlawfully and feloniously appoint ORLANDO M. TIAPE
as a Municipal Administrator of San Vicente, Palawan, accused Alejandro A. Villapando
knowing fully well that Orlando Tiape lacks the qualification as he is a losing mayoralty
candidate in the Municipality of Kitcharao, Agusan del Norte during the May 1998 elections,
hence is ineligible for appointment to a public office within one year (1) from the date of the
elections, to the damage and prejudice of the government and of public interest.
CONTRARY TO LAW.8
The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth
Division of the Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the
case against Tiape was dismissed after the prosecution proved his death which occurred on
July 26, 2000.9
After the prosecution rested its case, Villapando moved for leave to file a demurrer to
evidence. The Sandiganbayan, Fourth Division denied his motion but gave him five days
within which to inform the court in writing whether he will nonetheless submit his Demurrer
to Evidence for resolution without leave of court. 10 Villapando then filed a Manifestation of
Intent to File Demurrer to Evidence, 11 and was given 15 days from receipt to file his
Demurrer to Evidence. He filed his Demurrer to Evidence 12 on October 28, 2003.
In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapando’s
Demurrer to Evidence meritorious, as follows:
The Court found the "Demurrer to Evidence" impressed with merit.
Article 244 of the Revised Penal Code provides:
Article 244. Unlawful appointments.–Any public officer who shall knowingly nominate or
appoint to any public office any person lacking the legal qualifications therefor, shall suffer
the penalty of arresto mayor and a fine not exceeding 1,000 pesos. (underscoring supplied)
A dissection of the above-cited provision [yields] the following elements, to wit:
1. the offender was a public officer;
2. accused nominated or appointed a person to a public office;
3. such person did not have the legal qualifications [therefor;] and,
4. the offender knew that his nominee or appointee did not have the legal
qualifications at the time he made the nomination or appointment.
Afore-cited elements are hereunder discussed.
1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan
when the alleged crime was committed.
2. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality
of San Vicente, Palawan.
3. There appears to be a dispute. This Court is now called upon to determine
whether Orlando Tiape, at the time of [his] designation as Municipal Administrator,
was lacking in legal qualification. Stated differently, does "legal qualification"
contemplate the one (1) year prohibition on appointment as provided for in Sec. 6,
Art. IX-B of the Constitution and Sec. 94 (b) of the Local Government Code,
mandating that a candidate who lost in any election shall not, within one year after
such election, be appointed to any office in the Government?
The Court answers in the negative.
In ascertaining the legal qualifications of a particular appointee to a public office, "there
must be a law providing for the qualifications of a person to be nominated or appointed"
therein. To illuminate further, Justice Rodolfo Palattao succinctly discussed in his book that
the qualification of a public officer to hold a particular position in the government is provided
for by law, which may refer to educational attainment, civil service eligibility or experience:
As the title suggests, the offender in this article is a public officer who nominates or appoints
a person to a public office. The person nominated or appointed is not qualified and his lack
of qualification is known to the party making the nomination or appointment. The
qualification of a public officer to hold a particular position in the government is provided by
law. The purpose of the law is to ensure that the person appointed is competent to perform
the duties of the office, thereby promoting efficiency in rendering public service.
The qualification to hold public office may refer to educational attainment, civil service
eligibility or experience. For instance, for one to be appointed as judge, he must be a
lawyer. So if the Judicial and Bar Council nominates a person for appointment as judge
knowing him to be not a member of the Philippine Bar, such act constitutes a violation of the
law under consideration.
Josef Elvin Campos
In this case, Orlando Tiape was allegedly appointed to the position of Municipal
Administrator. As such, the law that provides for the legal qualification for the position of
municipal administrator is Section 480, Article X of the Local Government Code, to wit:
"Section 480. Qualifications, Terms, Powers and Duties.–(a) No person shall be appointed
administrator unless he is a citizen of the Philippines, a resident of the local government unit
concerned, of good moral character, a holder of a college degree preferably in public
administration, law, or any other related course from a recognized college or university, and
a first grade civil service eligible or its equivalent. He must have acquired experience in
management and administration work for at least five (5) years in the case of the provincial
or city administrator, and three (3) years in the case of the municipal administrator.
x x x x x x x x x"
It is noteworthy to mention that the prosecution did not allege much less prove that Mayor
Villapando’s appointee, Orlando Tiape, lacked any of the qualifications imposed by law on
the position of Municipal Administrator. Prosecution’s argument rested on the assertion that
since Tiape lost in the May 11, 1998 election, he necessarily lacked the required legal
qualifications.
It bears stressing that temporary prohibition is not synonymous with absence or lack of legal
qualification. A person who possessed the required legal qualifications for a position may be
temporarily disqualified for appointment to a public position by reason of the one year
prohibition imposed on losing candidates. Upon the other hand, one may not be temporarily
disqualified for appointment, but could not be appointed as he lacked any or all of the
required legal qualifications imposed by law.
4. Anent the last element, this Court deems it unnecessary to discuss the same.
WHEREFORE, finding the "Demurrer to Evidence" filed by Mayor Villapando with merit, the
same is hereby GRANTED. Mayor Villapando is hereby ACQUITTED of the crime charged.
SO ORDERED.13
Thus, this petition by the Office of the Ombudsman, through the Office of the Special
Prosecutor, representing the People of the Philippines.
Villapando was required by this Court to file his comment to the petition. Despite several
notices, however, he failed to do so and in a Resolution 14 dated June 7, 2006, this Court
informed him that he is deemed to have waived the filing of his comment and the case shall
be resolved on the basis of the pleadings submitted by the petitioner.
Petitioner raises the following issues:
I.
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN
INTERPRETING THAT THE "LEGAL DISQUALIFICATION" IN ARTICLE 244 OF
THE REVISED PENAL CODE DOES NOT INCLUDE THE ONE YEAR
PROHIBITION IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE
CONSTITUTION AND THE LOCAL GOVERNMENT CODE.
II.
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN
GIVING DUE COURSE TO, AND EVENTUALLY GRANTING, THE DEMURRER TO
EVIDENCE.15
Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave
abuse of discretion amounting to lack or excess of jurisdiction.
Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of
discretion amounting to lack or excess of jurisdiction because its interpretation of Article 244
of the Revised Penal Code does not complement the provision on the one-year prohibition
found in the 1987 Constitution and the Local Government Code, particularly Section 6,
Article IX of the 1987 Constitution which states no candidate who has lost in any election
shall, within one year after such election, be appointed to any office in the government or
any government-owned or controlled corporation or in any of their subsidiaries. Section
94(b) of the Local Government Code of 1991, for its part, states that except for losing
candidates in barangay elections, no candidate who lost in any election shall, within one
year after such election, be appointed to any office in the government or any government-
owned or controlled corporation or in any of their subsidiaries. Petitioner argues that the
court erred when it ruled that temporary prohibition is not synonymous with the absence of
lack of legal qualification.
The Sandiganbayan, Fourth Division held that the qualifications for a position are provided
by law and that it may well be that one who possesses the required legal qualification for a
position may be temporarily disqualified for appointment to a public position by reason of
Josef Elvin Campos
the one-year prohibition imposed on losing candidates. However, there is no violation of
Article 244 of the Revised Penal Code should a person suffering from temporary
disqualification be appointed so long as the appointee possesses all the qualifications
stated in the law.
There is no basis in law or jurisprudence for this interpretation. On the contrary, legal
disqualification in Article 244 of the Revised Penal Code simply means disqualification
under the law. Clearly, Section 6, Article IX of the 1987 Constitution and Section 94(b) of
the Local Government Code of 1991 prohibits losing candidates within one year after such
election to be appointed to any office in the government or any government-owned or
controlled corporations or in any of their subsidiaries.
Article 244 of the Revised Penal Code states:
Art. 244. Unlawful appointments. — Any public officer who shall knowingly nominate or
appoint to any public office any person lacking the legal qualifications therefore, shall suffer
the penalty of arresto mayor and a fine not exceeding 1,000 pesos.
Section 94 of the Local Government Code provides:
SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost
in Election. - (a) No elective or appointive local official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no elective or
appointive local official shall hold any other office or employment in the government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
(b) Except for losing candidates in barangay elections, no candidate who lost in any election
shall, within one (1) year after such election, be appointed to any office in the government or
any government-owned or controlled corporations or in any of their subsidiaries.
Section 6, Article IX-B of the 1987 Constitution states:
Section 6. No candidate who has lost in any election shall, within one year after such
election, be appointed to any office in the Government or any Government-owned or
controlled corporations or in any of their subsidiaries.
Villapando’s contention and the Sandiganbayan, Fourth Division’s interpretation of the term
legal disqualification lack cogency. Article 244 of the Revised Penal Code cannot be
circumscribed lexically. Legal disqualification cannot be read as excluding temporary
disqualification in order to exempt therefrom the legal prohibitions under Section 6, Article
IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991.
Although this Court held in the case of People v. Sandiganbayan16 that once a court grants
the demurrer to evidence, such order amounts to an acquittal and any further prosecution of
the accused would violate the constitutional proscription on double jeopardy, this Court held
in the same case that such ruling on the matter shall not be disturbed in the absence of a
grave abuse of discretion.1avvphi1
Grave abuse of discretion defies exact definition, but it generally refers to capricious or
whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be patent and gross as to amount to an evasion of a positive duty or 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 and
hostility.17
In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory
construction, acted with grave abuse of discretion. Its interpretation of the term legal
disqualification in Article 244 of the Revised Penal Code defies legal cogency. Legal
disqualification cannot be read as excluding temporary disqualification in order to exempt
therefrom the legal prohibitions under the 1987 Constitution and the Local Government
Code of 1991. We reiterate the legal maxim ubi lex non distinguit nec nos distinguere
debemus. Basic is the rule in statutory construction that where the law does not distinguish,
the courts should not distinguish. There should be no distinction in the application of a law
where none is indicated.
Further, the Sandiganbayan, Fourth Division denied Villapando’s Motion for Leave to File
Demurrer to Evidence yet accommodated Villapando by giving him five days within which to
inform it in writing whether he will submit his demurrer to evidence for resolution without
leave of court.
Notably, a judgment rendered with grave abuse of discretion or without due process is void,
does not exist in legal contemplation and, thus, cannot be the source of an acquittal. 18
The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in
disregarding the basic rules of statutory construction resulting in its decision granting
Josef Elvin Campos
Villapando’s Demurrer to Evidence and acquitting the latter, we can do no less but declare
its decision null and void.
WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the
Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private respondent
Alejandro A. Villapando’s Demurrer to Evidence and acquitting him of the crime of unlawful
appointment under Article 244 of the Revised Penal Code is hereby declared NULL and
VOID. Let the records of this case be remanded to the Sandiganbayan, Fourth Division, for
further proceedings.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
Sales v. Carreon (G.R. No. 160791, 13 February 2007)

G.R. No. 160791 February 13, 2007
PATRICIO E. SALES, ROGER R. SARIMOS, AL B. BUSICO, MARIMEL S. SAGARIO,
CAMILA B. BAGCOR, JONAS C. SALON, LILIBETH O. OBERES, NOEL E. MAWILI,
MARIO C. PAUSAL, JAMES D. TUGAHAN, MARIBETH C. DANGCALAN, CAMILO P.
RECAMARA, ANDRO H. AGDA, GERALDINE S. CARIN, MYRNA G. SAGARIO, OSCAR
E. MONCOPA, LOURDIRICO E. GUDMALIN, EUFEMIO A. MONTEDERAMOS, JR.,
CORNELIO E. JUMAWAN, JR., ELBA R. CASALANG, MERLA E. CAIDIC, RESTY C.
SOCOBOS, JOSE DARRY O. SAGARION, MARIA LUZ S. SIENES, BOB C. HAYAG,
RONIE L. LABISIG, FRANNIE M. ANTIVO, RONILO B. RUIZ, ANASTACIA A. PAILAGA,
LERNIE S. FREJOLES, ROMILO D. BAJAS, ISIDRA T. GALLEPOSO, LEAH S.
AUSTER, JOIEVELYNN E. HERRERA, JOELYALLUZ C. DOSIDOS, GLADYS M.
ADAZA, NICARATA A. GALLEPOSO, MARIA LIEZEL S. CUARESMA, ARLO B.
CAGATAN, JOSEPHINE S. CABILIN, LEA C. ALAG, PILAR A. JAMOLOD, and
BENJAMIN M. SUMALPONG, Petitioners,
vs.
HON. RODOLFO H. CARREON, JR., and THE CITY GOVERNMENT OF DAPITAN CITY,
represented by its Mayor, Hon. RODOLFO H. CARREON, JR., Respondents.
DECISION
For our resolution is the instant Petition for Review on Certiorari assailing the Decision 1 of
the Court of Appeals dated September 16, 2003 in CA-G.R. SP No. 75515.
During the May 2001 elections, then Mayor Joseph Cedrick O. Ruiz of Dapitan City, running
for re-election, was defeated by respondent Rodolfo H. Carreon, Jr.
On June 1, 18 and 27, 2001, his last month in office, then Dapitan City Mayor Ruiz issued
83 appointments, including those of herein petitioners.
On July 1, 2001, the newly elected Mayor, Rodolfo H. Carreon, Jr., herein respondent,
assumed office.
On July 2, 2001, respondent issued Memorandum Orders Nos. 1 and 2 revoking the 83
appointments signed by his predecessor on the ground that the latter violated Civil Service
Commission (CSC) Resolution No. 01-988 in relation to CSC Memorandum Circular No. 7,
Series of 2001, imposing a ban on issuing appointments in the civil service during the
election period. Thereupon, respondent prohibited the release of the salaries and benefits of
the 83 appointees.
On July 10, 2001, Patricio Sales, one of herein petitioners, in his capacity as president of
the Dapitan City Government Employees Association, wrote the CSC Regional Office No.
IX requesting its ruling on the matter.
On July 16 and August 3, 2001, respondent sent the said Office a position paper justifying
his action, contending that the questioned appointments were not only "issued in bulk" but
that there was no urgent need to fill those positions.
On August 17, 2001, the CSC Regional Office No. IX issued an Omnibus Order, the
WHEREFORE, all premises considered:
1. The eighty-three (83) appointments issued by then Mayor Joseph Cedrick O. Ruiz,
including those issued by the herein requesting parties, are, therefore not considered
"mass appointments," as defined under CSC Resolution No. 01-0988 and are thus,
VALID and EFFECTIVE.
2. Memorandum Orders Nos. 1 and 2, Series of 2001, issued by Mayor Rodolfo H.
Carreon, Jr., are hereby declared NULL and VOID, and accordingly,
Josef Elvin Campos
3. The LGU-Dapitan is hereby directed to pay the salaries and other emoluments to
which the 83 appointments are entitled to pursuant to the appointments issued to
them.
On appeal by respondent, the CSC En Banc, on June 17, 2002, issued Resolution No.
020828 reversing the assailed Omnibus Order of the CSC Regional Office No. IX, thus:
WHEREFORE, premises considered, the Omnibus Order dated August 17, 2001of the Civil
Service Commission Regional Office No. IX is
REVERSED and SET ASIDE. The Commission hereby rules, as follows:
1. The approval of all 83 appointments issued by then Mayor J. Cedrick O. Ruiz is
revoked for being violative of Republic Act No. 7041, CSC Memorandum Circular
No. 18 s. 1988, as amended, CSC Resolution No. 963332 on its accreditation and
CSC Resolution No. 01-0988.1awphi1.net
2. All promoted employees are reverted to their previous position; and
3. Memorandum Order No. 1 and Memorandum Order No. 2 issued by incumbent
Mayor Rodolfo H. Carreon, Jr. are hereby declared null and void.
The CSC En Banc held that the positions in question were published and declared vacant
prior to the existence of any vacancy.
Petitioners filed a motion for reconsideration but it was denied in Resolution No. 030049
dated January 16, 2003 by the CSC En Banc.
On February 13, 2003, petitioners filed with the Court of Appeals a petition for review. On
September 16, 2003, the appellate court rendered its Decision dismissing the petition,
sustaining the CSC’s finding that the positions to which the petitioners were appointed were
already reported and published even before they had been declared vacant, in violation of
Sections 2 and 3 of Republic Act (R.A.) No. 7041; 2 and that there was no first level
representative to the Personnel Section Board who should have participated in the
screening of candidates for vacancy in the first level.
Petitioners filed a motion for reconsideration, but this was denied by the Court of Appeals in
its Resolution dated November 17, 2003.
Hence, the instant petition.
This case is a typical example of the practice of outgoing local chief executives to issue
"midnight" appointments, especially after their successors have been proclaimed. It does
not only cause animosities between the outgoing and the incoming officials, but also affects
efficiency in local governance. Those appointed tend to devote their time and energy in
defending their appointments instead of attending to their functions. However, not all
"midnight" appointments are invalid. 3 Each appointment must be judged on the basis of the
nature, character, and merits of the individual appointment and the circumstances
surrounding the same.4 It is only when the appointments were made en masse by the
outgoing administration and shown to have been made through hurried maneuvers and
under circumstances departing from good faith, morality, and propriety that this Court has
struck down "midnight" appointments.5
It is State policy that "opportunities for government employment shall be open to all qualified
citizens" and "employees shall be selected on the basis of fitness to perform the duties and
assume the responsibilities of the positions." 6 It was precisely in order to ensure
transparency and equal opportunity in the recruitment and hiring of government personnel,
that Republic Act No. 7041 was enacted. Section 2 provides:
SEC. 2. Duty of Personnel Officers. – It shall be the duty of all Chief Personnel or
Administrative Officers of all branches, subdivisions, instrumentalities and agencies of the
Government, including government-owned or controlled corporations with original charters,
and local government units, to post in three (3) conspicuous places of their offices for a
period ten (10) days a complete list of all existing vacant positions in their respective offices
which are authorized to be filled, and to transmit a copy of such list and the corresponding
qualification standards to the Civil Service Commission not later than the tenth day of every
month. Vacant positions shall not be filled until after publication: Provided, however,
that vacant and unfilled positions that are:
a) primarily confidential;
b) policy-determining;
c) highly technical;
d) co-terminous with that of the appointing authority; or
e) limited to the duration of a particular project, shall be excluded from the list
required by law.
SEC. 3. Publication of Vacancies. – The Chairman and members of the Civil Service
Commission shall publish once every quarter a complete list of all the existing vacant
positions in the Government throughout the country, including the qualification standards
Josef Elvin Campos
required for each position and, thereafter, certify under oath to the completion of publication.
Copies of such publication shall be sold at cost to the public and distributed free of charge
to the various personnel office of the government where they shall be available for
inspection by the public: Provided, That said publication shall be posted by the Chief
Personnel or Administrative Officer of all local government units in at least three (3) public
and conspicuous places in their respective municipalities and provinces: Provided, further,
That any vacant position published therein shall be open to any qualified person who does
not necessarily belong to the same office with the vacancy or who occupies a position next-
in-rank to the vacancy: Provided, finally, That the Civil Service Commission shall not act
on any appointment to fill up a vacant position unless the same has been reported to
and published by the Commission.
The foregoing provisions are clear and need no interpretation. The CSC is required to
publish the lists of vacant positions and such publication shall be posted by the chief
personnel or administrative officer of all local government units in the designated places.
The vacant positions may only be filled by the appointing authority after they have been
reported to the CSC as vacant and only after publication.
Here, the publication of vacancies was made even before the positions involved actually
became vacant. Clearly, respondent’s action violated Section 2 of R.A. No. 7041 cited
earlier.
Moreover, the CSC found that there was no first-level representative appointed to the
Personnel Selection Board, which deliberated on the appointments to first-level positions.
CSC Memorandum Circular No. 18, series of 1988, as amended, provides that the
Personnel Selection Board shall be composed of the following:
a. Official of department/agency directly responsible for personnel management;
b. Representative of management;
c. Representative of organizational unit which may be an office, department, or
division where the vacancy is;
d. Representative of rank-and-file employees, one (1) for the first-level and one
(1) for the second-level, who shall both be chosen by duly registered/accredited
employees’ association in the department or agency. The former shall sit during
the screening of candidates for vacancy in the first-level, while the latter shall
participate in the screening of candidates for vacancy in the second level. In case
where there is no employees’ association in the department or agency, the
representative shall be chosen at large by the employees through a general election
to be called for the purpose.
Petitioners admitted that after the retirement on April 22, 2000 of Beltran Faconete, the first-
level representative to the Personnel Selection Board, no other first-level representative to
replace him was chosen by the Dapitan City Government Employees Association. Yet, the
city government Personnel Selection Board proceeded to deliberate and recommend the
appointments of applicants to the 43 first-level positions. Petitioners contend, however, that
although there was no such representative, the action of the Board is still valid.
Petitioners’ contention lacks merit.
Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the Administrative
Code of 1987 (also known as the Civil Service Law), provides:
SEC. 20. Notwithstanding the initial approval of an appointment, the same may be recalled
on any of the following grounds:
a) non-compliance with the procedures/criteria provided in the agency’s Merit
Promotion Plan;
b) failure to pass through the agency’s Selection/Promotion Board;
c) violation of the existing collective bargaining agreement between management
and employees relative to promotion; or
d) violation of other existing civil service laws, rules and regulations.
Verily, in deliberating and recommending to former Mayor Ruiz the appointments of herein
petitioners to the vacant positions sans the required representation, the Board violated the
above CSC Rules. Hence, the appointments he issued are not valid. They may be recalled.
In Mathay, Jr. v. Civil Service Commission,7 this Court upheld the authority of the CSC to
take appropriate action on all appointments, including its authority to recall
appointments made in disregard of the applicable provisions of Civil Service Law and
regulations.
In sum, for being in violation of Section 2, R.A. No. 7041, CSC Memorandum Circular No.
18, as amended, and Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of
the Administrative Code of 1987, the appointments of the above-named petitioners are
declared void.
Josef Elvin Campos
WHEREFORE, the Court DENIES the petition and AFFIRMS the assailed Decision of the
Court of Appeals in CA-G.R. SP No. 755151.
SO ORDERED.
ANGELINA SANDOVAL GUTIERREZ
Associate Justice
Quirog v. Aumentado (G.R. No. 163443, 11 November 2008)

G.R. No. 163443 November 11, 2008
LIZA M. QUIROG and RENE L. RELAMPAGOS, petitioners
vs.
GOVERNOR ERICO B. AUMENTADO, respondent.
x--------------------------------------x
G.R. No. 163568 November 11, 2008
CIVIL SERVICE COMMISSION, petitioner
vs.
COURT OF APPEALS and GOV. ERICO B. AUMENTADO, respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before this Court are two consolidated petitions for review under Rule 45 of the Rules of
Court both assailing and seeking to set aside the Court of Appeals' (CA) Decision1 dated
March 31, 2003 and the Resolution2 dated April 12, 2004 in CA-G.R. SP No. 70255. The
Decision set aside Resolution Nos. 011812 and 020271 dated November 20, 2001 and
February 22, 2002, respectively, of the Civil Service Commission in Administrative NDC No.
01-88 and reinstated the (a) June 28, 2001 Order and (b) July 23, 2001 Decision of the Civil
Service Commission Regional Office No. VII.
The facts as culled from the records are as follows:
On May 28, 2001, Bohol Provincial Governor Rene L. Relampagos permanently
appointed3 Liza M. Quirog as Provincial Government Department Head 4 of the Office of the
Bohol Provincial Agriculture (PGDH-OPA). The appointment was confirmed by the
Sangguniang Panlalawigan in Resolution No. 2001-199 5 on June 1, 2001. On even date,
Quirog took her oath of office.
Before the issuance of the permanent appointment, the Personnel Selection Board (PSB) of
the Human Resource Management and Development Office of Bohol issued a
certification6 that Quirog was one of two candidates qualified for the position of PGDH-OPA.
A copy of the Monthly Report on Personnel Actions (ROPA) covering the months of May
and June 2001 of the provincial government was submitted to the Civil Service Commission
Regional Office No. VII (CSCROVII), Cebu City.
In the Order dated June 28, 2001 7, the Director of CSCROVII invalidated Quirog's
appointment as PGDH-OPA upon finding that the same was part of the bulk appointments
issued by then Governor Relampagos after the May 14, 2001 elections allegedly in violation
of Item No. 3(d)8 of CSC Resolution No. 010988 dated June 4, 2001. The Order pointed out
that the prohibition against the issuance of midnight appointments was already laid down as
early as February 29, 2000 in CSC Resolution No. 000550. 9
Both Relampagos and Quirog moved for reconsideration of the CSCROVII Order, alleging
that when the latter took her oath of office on June 1, 2001, CSC Resolution No. 010988
was not yet effective as it took effect only on June 4, 2001. They argued that the subject
appointment cannot be considered a midnight appointment because it was made days
before the expiration of Relampagos' term, and that Quirog was already the acting
Provincial Agriculturist a year prior to said appointment or since June 19, 2000. 10 Besides,
so they asserted, since Quirog had already taken her oath of office, assumed her duties and
collected her salary for the month of June, 2001, she had already acquired a legal, not
merely equitable, right to the position in question, which cannot be taken away from her
either by revocation of the appointment or by removal except for cause and with previous
notice and hearing.
In a decision11 dated July 23, 2001, the CSCROVII denied Quirog's and Relampagos'
motion for reconsideration for lack of legal personality to file such pleading, citing Section 2,
Rule VI of CSC Memorandum Circular (MC) No. 40, series of 1998. The CSCROVII
explained that only the appointing officer may request reconsideration of the disapproval of
an appointment by the Civil Service Commission. Even if Relampagos was the one who
appointed Quirog, he could not file a motion for reconsideration because his term as
governor had already expired.
Aggrieved, the petitioners in G.R. No. 163443 appealed to the Civil Service Commission
(CSC) where their joint appeal was docketed as Adm. NDC No. 01-88.
Josef Elvin Campos
On November 20, 2001, the CSC issued Resolution No. 011812, 12 which granted the said
joint appeal and set aside the order and decision of the CSCROVII. More specifically, the
Resolution states:
WHEREFORE, the joint appeal of former Governor Rene L. Relampagos and Liza
M. Quirog is hereby GRANTED. Accordingly, the decision dated July 23, 2001 of the
Civil Service Commission-Regional Office No. VII and CSCRO No. VII Order dated
June 28, 2001 are hereby set aside. Said Regional Office is enjoined to approve the
appointment of Quirog to the position of Provincial Government Head, Office of the
Provincial Agriculturist, Province of Bohol.
According to the CSC, since Relampagos had ceased to be the appointing authority upon
the expiration of his term as governor and incumbent Governor Erico B. Aumentado was not
the official who made the subject appointment, equity dictates that the appointee Quirog be
allowed to question the decision to obviate possible damage or injury to the delivery of
public service. The CSC also declared that the appointment of Quirog was not a midnight
appointment as it was not hurriedly issued nor did it subvert the policies of the incoming
administration. The CSC relaxed the application of Item 3(a) 13 in CSC Resolution 01-0988
requiring that appointments should have gone through the regular screening by the PSB
before the election ban or the prohibited period from March 30, 2001 to May 14, 2001. After
noting that the selection board only deliberated upon Quirog's qualifications on May 24,
2001, or after the election ban, the CSC ratiocinated that the spirit, rather than the letter of
the said rule should prevail as long as the case did not involve a midnight appointment
proscribed by Aytona v. Castillo, et al.14 Lastly, the CSC justified Quirog's appointment even
though such was included among 46 post-election appointments because of the need to
immediately fill up in a permanent capacity the vacant position of Provincial Agriculturist and
the fact that Governor Aumentado expressly declared his trust and confidence in Quirog in
his Memorandum No. 115 dated July 2, 2001.
On December 10, 2001, incumbent Bohol Governor Erico B. Aumentado filed an amended
Motion for Reconsideration16 of the CSC Resolution No. 011812. He insisted that Quirog
and Relampagos had no legal personality to file a motion for reconsideration of the
disapproved appointment or to appeal the same. He insisted that Quirog's appointment was
a midnight appointment. Aumentado added that the selection board which screened
Quirog's qualifications was not validly constituted and that the subject appointment was
made more than six months from the time it was published on July 23, 2000 in violation of
CSC Resolution No. 01011417 dated January 10, 2001. Aumentado insisted that
Relampagos made 97, not 46, mass appointments on the eve of his term, 95 of which were
invalidated by the CSC Bohol Field Office and two, including that of Quirog, by the
CSCROVII.
In Resolution No. 02027118 dated February 22, 2002, the CSC denied Aumentado's motion
for reconsideration. Aumentado then filed a petition for review 19 under Rule 43 of the Rules
of Court with the CA where it was docketed as CA-G.R. SP No. 70255.
On March 31, 2003, the CA rendered the herein challenged Decision, 20 granting
Aumentado's petition. The CA reversed and set aside CSC Resolution No. 011812 and
ruled that Quirog's appeal should have been dismissed outright for lack of legal personality:
WHEREFORE, based on the foregoing premises, the instant petition is hereby
GRANTED, the assailed CSC Resolution Nos. 011812 and 020271, dated
November 20, 2001 and February 22, 2002 respectively, are REVERSED and SET
ASIDE. The CSCROVII's June 28, 2001 Order and its July 23, 2001 Decision are
hereby REINSTATED.
SO ORDERED.
On April 12, 2004, the CA rendered the second assailed Resolution, 21 denying Quirog and
Relampagos' motion for reconsideration.
From the adverse decision of the CA, the CSC as well as Relampagos and Quirog
interposed separate petitions for review on certiorari. Relampagos and Quirog's
petition22 filed on June 25, 2004, was docketed as G.R. No. 163443, while the CSC's
petition23 filed on July 8, 2004, was docketed as G.R. No. 163568.
In the Resolution24 dated July 13, 2004, the Court ordered the consolidation of the two
petitions.
The consolidated petitions present the following issues for the Court's resolution: (1)
whether or not petitioners Relampagos and Quirog have the legal standing to file a motion
for reconsideration of, or appeal from, the disapproval of the latter's appointment by the Civil
Service Commission, (2) whether or not Quirog's appointment violated Item 3 of CSC
Resolution No. 010988 dated June 4, 2001, and 3) whether or not the subject appointment
was a midnight appointment.
Josef Elvin Campos
In the herein challenged decision, the CA held that only the appointing authority could
challenge the CSC's disapproval of an appointment. In arriving at such a conclusion, the CA
relied solely on Section 2 of Rule VI of CSC Memorandum Circular (MC) No. 40, series of
199825 which provides:
Sec. 2. Requests for reconsideration of, or appeal from, the disapproval of an
appointment may be made by the appointing authority and submitted to the
Commission within fifteen (15) days from receipt of the disapproved appointment.
The petitioners share the view that the word may in the afore-quoted provision simply
means that a request for reconsideration or appeal from a disapproved appointment is not
vested exclusively in the appointing authority and that Quirog's appeal should have been
given due course because she was the real party-in-interest, being the one aggrieved by
the disapproval of the appointment.
Petitioners Quirog and Relampagos contend that their appeal before the CA should not
have been dismissed on a mere technicality such as lack of legal personality. They argued
that litigants must be afforded full opportunity for the adjudication of their case on the merits.
The CSC for its part, pointed out that in previously decided cases, the CSC allowed the
appointees to take relief from the disapproval of their appointments as an exception to the
rule on legal standing.
Upon the other hand, respondent Aumentado maintains that the controlling rule on the
matter of legal standing is the afore-cited Section 2, Rule VI, CSC MC No. 40, series of
1998. He anchors his argument in Mathay, Jr. v. Civil Service Commission,26 where the
Court laid down the ruling that only the appointing authority can request for reconsideration
of a CSC-disapproved appointment.
The Court rules for the petitioners.
In the recent case of Abella, Jr. v. Civil Service Commission,27 the Court declared that both
the appointing authority and the appointee are equally real parties in interest who have the
requisite legal standing to bring an action challenging a CSC disapproval of an appointment.
In said case, we held that:
The CSC's disapproval of an appointment is a challenge to the exercise of the
appointing authority's discretion. The appointing authority must have the right to
contest the disapproval. Thus, Section 2 of Rule VI of CSC Memorandum Circular
40, s. 1998 is justified insofar as it allows the appointing authority to request
reconsideration or appeal.
xxx
Although the earlier discussion demonstrates that the appointing authority is
adversely affected by the CSC's Order and is a real party in interest, the appointee is
rightly a real party in interest too. He is also injured by the CSC disapproval, because
he is prevented from assuming the office in a permanent capacity. Moreover, he
would necessarily benefit if a favorable judgment is obtained, as an approved
appointment would confer on him all the rights and privileges of a permanent
appointee.
xxx
Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 should not be
interpreted to restrict solely to the appointing authority the right to move for a
reconsideration of, or to appeal, the disapproval of an appointment. PD 807 and EO
292, from which the CSC derives the authority to promulgate its rules and
regulations, are silent on whether appointees have a similar right to file motions for
reconsideration of, or appeals from, unfavorable decisions involving appointments.
Indeed, there is no legislative intent to bar appointees from challenging the CSC's
disapproval.
The view that only the appointing authority may request reconsideration or appeal is
too narrow. The appointee should have the same right. Parenthetically, CSC
Resolution 99-1936 recognizes the right of the adversely affected party to appeal to
the CSC Regional Offices prior to elevating a matter to the CSC Central Office. The
adversely affected party necessarily includes the appointee. 28
Also, in Abella, Jr, we held that the right of the appointee to seek reconsideration or appeal
was not the main issue in Mathay:
This judicial pronouncement does not override Mathay v. Civil Service Commission xxx. The
Court merely noted in passing -- by way of obiter -- that based on a similar provision, only
the appointing officer could request reconsideration of actions taken by the CSC on
appointments.
In that case, Quezon City Mayor Ismael A. Mathay Jr. sought the nullification of CSC
Resolutions that recalled his appointment of a city government officer. He filed a Petition
Josef Elvin Campos
assailing the CA Decision, which had previously denied his Petition for Certiorari for being
the wrong remedy and for being filed out of time. We observed then that the CSC
Resolutions were already final and could no longer be elevated to the CA. Furthermore,
Mathay's Petition for Certiorari filed with the CA was improper, because there was an
available remedy of appeal. And the CSC could not have acted without jurisdiction,
considering that it was empowered to recall an appointment initially approved.
The right of the appointee to seek reconsideration or appeal was not the main issue in
Mathay. At any rate, the present case is being decided en banc, and the ruling may reverse
previous doctrines laid down by this Court. 29
Clearly, pursuant to Abella, Jr., Quirog had the right to ask for reconsideration of, or to
appeal the adverse ruling of CSCROVII. In contrast, Relampagos, by reason of the
expiration of his term as governor, had lost the legal personality to contest the disapproval
of the appointment.
As to the validity of Quirog's appointment, the CSCROVII disapproved Quirog's appointment
for non-compliance with Item No. 3 of CSC Resolution No. 010988 dated June 4, 2001.
Item No. 3 refers to the disapproval of appointments unless certain requisites are complied
with. Item No. 3 reads:
3. All appointments, whether original, transfer, reemployment, reappointment,
promotion or demotion, x x x which are issued AFTER the elections, regardless of
their dates of effectivity and/or date of receipt by the Commission, x x x shall be
disapproved unless the following requisites concur relative to their issuance:
a) The appointment has gone through the regular screening by the Personnel
Selection Board (PSB) before the prohibited period on the issuance of
appointments as shown by the PSB report or minutes of its meeting;
b) That the appointee is qualified;
c) There is a need to fill up the vacancy immediately in order not to prejudice
public service and/or endanger public safety;
d) That the appointment is not one of those mass appointments issued after
the elections.
The CSC ruled that the promotional appointment extended to Quirog by Governor
Relampagos was not violative of the aforesaid CSC Resolution. This interpretation by the
CSC of its own rules should be given great weight and consideration for after all, it is the
agency tasked with interpreting or applying the same.
Records disclose that on May 28, 2001, the PSB of the Human Resource Management and
Development Office of Bohol, issued a certification 30 that Quirog was one of two candidates
qualified for the position of PGDH-OPA. On the same day, Quirog was appointed by then
Governor Relampagos and on June 1, 2001, she took her oath of office. CSC Resolution
No. 010988 was issued three days later, or on June 4, 2001. Evidently, the CSCROVII
should not have subjected Quirog's appointment to the requirements under said resolution,
as its application is against the prospective application of laws. Having no provision
regarding its retroactive application to appointments made prior to its effectivity, CSC
Resolution No. 010988 must be taken to be of prospective application. As we have held
time and again:
Since the retroactive application of a law usually divests rights that have already
become vested, the rule in statutory construction is that all statutes are to be
construed as having only a prospective operation unless the purpose and intention of
the legislature to give them a retrospective effect is expressly declared or is
necessarily implied from the language used.31
Prescinding therefrom, it cannot be said that Quirog's appointment violated CSC Resolution
No. 010988, the said Resolution having taken effect after the questioned appointment was
extended.
It cannot also be said that Quirog's appointment was a midnight appointment. The
constitutional prohibition on so-called midnight appointments, specifically, those made
within two (2) months immediately prior to the next presidential elections, applies only to the
President or Acting President.32
As the Court ruled in De Rama v. CA33:
The records reveal that when the petitioner brought the matter of recalling the
appointments of the fourteen (14) private respondents before the CSC, the only
reason he cited to justify his action was that these were midnight appointments that
are forbidden under Article VII, Section 15 of the Constitution. However, the CSC
ruled, and correctly so, that the said prohibition applies only to presidential
appointments. In truth and in fact, there is no law that prohibits local elective officials
from making appointments during the last days of his or her tenure.
Josef Elvin Campos
We, however, hasten to add that the aforementioned ruling does not mean that the raison d'
etre behind the prohibition against midnight appointments may not be applied to those
made by chief executives of local government units, as here. Indeed, the prohibition is
precisely designed to discourage, nay, even preclude, losing candidates from issuing
appointments merely for partisan purposes thereby depriving the incoming administration of
the opportunity to make the corresponding appointments in line with its new policies. As we
held in Aytona v. Castillo:
The filling up of vacancies in important positions, if few, and so spaced as to afford
some assurance of deliberate action and careful consideration of the need for the
appointment and the appointee's qualifications may undoubtedly be permitted. But
the issuance of 350 appointments in one night and the planned induction of
almost all of them in a few hours before the inauguration of the new President
may, with some reason, be regarded by the latter as an abuse of Presidential
prerogatives, the steps taken being apparently a mere partisan effort to fill all
vacant positions irrespective of fitness and other conditions, and thereby to
deprive the new administration of an opportunity to make the corresponding
appointments.34 (Emphasis ours)
The appointment of Quirog cannot be categorized as a midnight appointment. For it is
beyond dispute that Quirog had been discharging and performing the duties concomitant
with the subject position for a year prior to her permanent appointment thereto. Surely, the
fact that she was only permanently appointed to the position of PGDH-OPA after a year of
being the Acting Provincial Agriculturist more than adequately shows that the filling up of the
position resulted from deliberate action and a careful consideration of the need for the
appointment and the appointee's qualifications. The fact that Quirog had been the Acting
Provincial Agriculturist since June 2000 all the more highlights the public need for said
position to be permanently filled up.
Besides, as correctly held by the CSC:
A careful evaluation of the circumstances obtaining in the issuance of the
appointment of Quirog shows the absence of the element of hurriedness on the part
of former Governor Relampagos which characterizes a midnight appointment. There
is also wanting in the records of the case the subversion by the former governor of
the policies of the incumbent Governor Erico Aumentado as a logical consequence
of the issuance of Quirog's appointment by the latter. Both elements are the
primordial considerations by the Supreme Court when it laid down its ruling in
prohibiting midnight appointments in the landmark case of Aytona vs Castillo, et. al.35
In any event, respondent Governor Aumentado, in a Memorandum 36 dated March 4, 2003,
has reinstated Quirog to the permanent position of PGDH-OPA. Such act of respondent
bespeaks of his acceptance of the validity of Quirog's appointment and recognition that
indeed, the latter is qualified for the subject position.
WHEREFORE, the assailed Decision dated March 31, 2003 and the Resolution dated April
12, 2004 of the Court of Appeals are REVERSED AND SET ASIDE and CSC Resolution
Nos. 011812 and 020271 dated November 20, 2001 and February 22, 2002, respectively,
are AFFIRMED.
SO ORDERED.
Montuerto v. Ty (G.R. No. 177736, 06 October 2008)

G.R. No. 177736 October 6, 2008
MELANIE P. MONTUERTO, petitioner,
vs.
HONORABLE MAYOR ROLANDO E. TY and THE SANGGUNIANG BAYAN,
represented by HONORABLE VICE-MAYOR RICHARD D. JAGUROS, all of the
Municipality of Almeria, Biliran, respondents.
RESOLUTION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Civil
Procedure seeking the reversal of the Court of Appeals (CA) Decision 2 dated October 31,
2006 and Resolution3 dated March 29, 2007, which affirmed in toto the Resolution of the
Civil Service Commission (CSC) dated June 7, 2005.
The antecedents, as found by the CA, are as follows:
On March 17, 1992, petitioner was issued an appointment as Municipal Budget Officer by
the then Mayor Supremo T. Sabitsana of the Municipality of Almeria, Biliran. On March 24,
1992, her appointment was approved as permanent by Gerardo Corder, Acting Civil Service
Commission Field Officer.
Josef Elvin Campos
On January 14, 2002, the Sangguniang Bayan of Almeria, Biliran passed Sangguniang
Bayan (SB) Resolution No. 01-S-2002 entitled "A Resolution Requesting the Civil Service
Commission Regional Office, to Revoke the Appointment of Mrs. Melanie P. Montuerto,
Municipal Budget Officer of the Municipality of Almeria, Biliran for Failure to Secure the
Required Concurrence from the Sangguniang Bayan."
Consequently, the Municipality of Almeria, Biliran submitted the 201 file of petitioner to Civil
Service Commission Regional Office No. VIII (CSCRO No. VIII) which showed that
petitioner's appointment lacked the required concurrence of the local sanggunian. On the
other hand, petitioner submitted to the same office a Joint-Affidavit 4 executed on March 6,
2002, by the majority of the then members of the Sangguniang Bayan of Almeria, Biliran,
the pertinent portion of which reads:
4. Since the regular session focused on the deliberations regarding the municipal
budget, the concurrence on the appointment of Municipal Budget Officer Melanie P.
Montuerto was not highlighted and the concurrence was inadvertently omitted in the
Minutes of the Regular Session for 2 March 1992. But, we can still fully recall that
there was really a verbal concurrence on the appointment of Municipal Budget
Officer Melanie P. Montuerto x x x.
On March 11, 2002, CSCRO No. VIII issued an Order decreeing:
WHEREFORE, foregoing premises considered, the approval on the appointment of
Melanie P. Montuerto as Municipal Budget Officer of LGU-Almeria, Leyte xxx is
hereby RECALLED on the ground that it lacks the required concurrence of the
majority of all the members of the Sangguniang Bayan of LGU-Almeria, Biliran.
Petitioner moved for reconsideration. Before resolving the motion, CSCRO No. VIII invited
Marcelo C. Maceda, Jr., incumbent SB Secretary, to appear and bring with him any
document showing that petitioner's appointment as Municipal Budget Officer had been
submitted to the SB for concurrence. In reply, Maceda issued a Certification on June 10,
2002, which reads:
This is to certify that as per records kept on file by this office, there is no record that
would show that the appointment of Mrs. Melanie P. Montuerto, as Municipal Budget
Officer of Almeria, Biliran was submitted to the Sangguniang Bayan for concurrence
from June 1992 up to the present.
However, the SB minutes of the March 2, 1992 regular session pointed out the
presence of a budget officer who explained fully the details of the 1992 Municipal
Annual Budget of Almeria, Biliran.
Likewise, Maceda submitted a copy of the SB Minutes of the regular session held on March
2, 1992.
On July 9, 2002, CSCRO No. VIII denied petitioner's motion for reconsideration. Aggrieved,
petitioner appealed to the CSC Central Office. After due consideration of the pleadings and
documents presented, the latter issued CSC Resolution No. 040728 dated July 1, 2004,
disposing of petitioner's appeal in this wise:
WHEREFORE, the instant appeal of Melanie P. Montuerto is hereby DISMISSED.
Accordingly, the appealed Order dated March 11, 2002 of the Civil Service
Commission-Regional Office No. VIII, Palo, Leyte, recalling the initial approval of the
appointment of Montuerto as Municipal Budget Officer of Almeria, Biliran, for lack of
the required concurrence by the majority of all the members of Sangguniang Bayan,
is hereby AFFIRMED.
Petitioner filed a motion for reconsideration which was denied in CSC Resolution No.
050756 dated June 7, 2005. Meanwhile, on July 30, 2004, the Municipal Mayor of Almeria,
Biliran issued Office Order No. 15 which directed the indefinite detail of the petitioner to the
Cooperative Development Project. In the same office order, the commutable representation
and transportation allowance of petitioner was removed. On July 11, 2005, the Municipal
Mayor issued a Memorandum terminating the services of petitioner as Municipal Budget
Officer pursuant to CSC Resolution No. 050756.
Petitioner filed a Petition for Review under Rule 43 of the Rules of Civil Procedure before
the CA, which denied it for lack of merit.
Hence, the instant Petition raising the sole issue of whether the appointment of petitioner as
Municipal Budget Officer, without the written concurrence of the Sanggunian, but duly
approved by the CSC and after the appointee had served as such for almost ten years
without interruption, can still be revoked by the Commission.
We resolve to deny the Petition.
The law is clear. Under Section 443(a) and (d) of Republic Act (R.A.) No. 71605 or the Local
Government Code, the head of a department or office in the municipal government, such as
the Municipal Budget Officer, shall be appointed by the mayor with the concurrence of the
Josef Elvin Campos
majority of all Sangguniang Bayan members6 subject to civil service law, rules and
regulations. Per records, the appointment of petitioner was never submitted to
the Sangguniang Bayan for its concurrence or, even if so submitted, no such concurrence
was obtained. Such factual finding of quasi-judicial agencies, especially if adopted and
affirmed by the CA, is deemed final and conclusive and may not be reviewed on appeal by
this Court. This Court is not a trier of facts and generally, does not weigh anew evidence
already passed upon by the CA. Absent a showing that this case falls under any of the
exceptions to this general rule, this Court will refrain from disturbing the findings of fact of
the tribunals below.
Moreover, we agree with the ruling of the CA that the verbal concurrence allegedly given by
the Sanggunian, as postulated by the petitioner, is not the concurrence required and
envisioned under R.A. No. 7160. The Sanggunian, as a body, acts through a resolution or
an ordinance. Absent such resolution of concurrence, the appointment of petitioner failed to
comply with the mandatory requirement of Section 443(a) and (d) of R.A. No. 7160. Without
a valid appointment, petitioner acquired no legal title to the Office of Municipal Budget
Officer, even if she had served as such for ten years.
Accordingly, the CSC has the authority to recall the appointment of the petitioner. 7
All told, we find no reversible error on the part of the CA.
WHEREFORE, the instant Petition is DENIED for lack of merit. No costs.
SO ORDERED.
Provincial Government of Aurora v. Marco (G.R. No. 202331, 22 April 2015)

G.R. No. 202331, April 22, 2015
THE PROVINCIAL GOVERNMENT OF AURORA, Petitioner, v. HILARIO M.
MARCO, Respondents.
DECISION
LEONEN, J.:
The prohibition on midnight appointments only applies to presidential appointments. It does
not apply to appointments made by local chief executives.
Nevertheless, the Civil Service Commission has the power to promulgate rules and
regulations to professionalize the civil service. It may issue rules and regulations prohibiting
local chief executives from making appointments during the last days of their tenure.
Appointments of local chief executives must conform to these civil service rules and
regulations in order to be valid.
This is a Petition for Review on Certiorari1 of the Court of Appeals Decision2 that denied the
appeal of the Provincial Government of Aurora (the Province). The Province appealed the
Resolution3 of the Civil Service Commission granting the Motion for Execution filed by
Hilario M. Marco (Marco). The Civil Service Commission had earlier reversed and set aside
the disapproval of Marco's permanent appointment as Cooperative Development Specialist
II.4
Governor Ramoncita P. Ong (Governor Ong) permanently appointed 5 Marco as

Cooperative Development Specialist II on June 25, 2004, five (5) days before the end of her
term as Governor of the Province.6 On June 28, 2004, Marco's appointment, together with
25 other appointments, was submitted to the Civil Service Commission Field Office-Aurora
(the Field Office). Annexed to Marco's appointment papers was a certification from
Provincial Budget Officer Norma R. Clemente (Provincial Budget Officer Clemente) and
Provincial Accountant Wilfredo C. Saturno (Provincial Accountant Saturno) stating that
funds from the Province's 2004 Annual Budget were available to cover the position. 7
On June 30, 2004, newly elected Governor Bellaflor Angara-Castillo assumed office. The
next day, she called to an executive meeting all the department heads of the Province. 8
During the executive meeting, Provincial Budget Officer Clemente allegedly manifested that
the Province had no funds available to pay for the salaries of Governor Ong's 26
appointees.9 She subsequently issued a Letter recalling the previously issued certification of
the availability of funds:chanroblesvirtuallawlibrary
In view of the result of the dialogue of the concerned offices regarding the financial status of
the Provincial Government of Aurora, we hereby recall/retrieve our previously issued
certification of availability of funds relative to the appointments issued by Governor
Ramoncita P. Ong.10cralawlawlibrary
Josef Elvin Campos
Provincial Budget Officer Clemente's Letter was submitted to the Province's Human
Resource Management-Office. It was then forwarded to the Field Office. 11
Due to the recall of the certification, the Field Office disapproved Marco's appointment in the
Letter12 dated July 5, 2004.13
The Province, through Human Resource Management Officer Liwayway G. Victorio, served
Marco a copy of the Letter dated July 5, 2004. Marco was, thus, advised to refrain from
reporting for work beginning July 8, 2004, the day he received notice of the disapproval of
his appointment.14
Marco wrote the Civil Service Commission Regional Office No. IV (Regional Office), moving
for the reconsideration of the disapproval of his appointment. 15 The Regional Office,
however, denied reconsideration in its Decision 16 dated April 6, 2005 and affirmed the
disapproval of Marco's appointment. It said that "[t]he lack of funds for the [26 appointments
Governor Ong issued] was established during the meeting of the different department
heads of Aurora Province and their new governor." 17
Through the Letter dated May 17, 2005, Marco appealed before the Civil Service
Commission.18 The Province, through its Human Resource Management Office, received a
copy of Marco's Letter on May 23, 2005. 19 However, it failed to comment on the appeal
within 10 days from receipt as required by Section 73 of the Uniform Rules on
Administrative Cases in the Civil Service. 20
In the Resolution21 dated April 14, 2008, the Civil Service Commission granted Marco's
appeal and set aside the Regional Office's Decision dated April 6, 2005. It ruled that
Marco's appointment was valid since it was accompanied by a certification of availability of
funds.22 As to the Letter withdrawing the certification, the Civil Service Commission ruled
that it did not affect the validity of Marco's appointment because the Province "failed to
submit documentary evidence to support its claim [that it had no funds to pay for the
services of Governor Ong's appointees]."23
The Civil Service Commission added that the Province's withdrawal of the certification was
"unfair to Marco":24ChanRoblesVirtualawlibrary
It is unfair to Marco who applied for the said position believing in good faith that funds were
available, passed the screening conducted by the Personnel Selection Board (PSB) on
February 12 & 13, 2004, was appointed on June 25, 2004 and was later told to stop
reporting for work as his appointment was disapproved by [the Civil Service Commission
Field Office-Aurora] simply because the provincial government under the new governor
realized that it has no funds to pay for his services. 25cralawlawlibrary
Thus, the Civil Service Commission ordered the Regional Office to investigate whether
Provincial Budget Officer Clemente and Provincial Accountant Saturno were
administratively liable for certifying that funds were available to cover the positions filled by
Governor Ong's appointees but subsequently withdrawing this certification. 26 It ordered the.
Field Office to reflect the Resolution in Marco's appointment papers and in his Service
Record.27
The Province received a copy of the April 14, 2008 Resolution on May 21, 2008. 28
On July 22, 2008, Provincial Administrator Alex N. Ocampo (Provincial Administrator

Ocampo), on behalf of the Province, filed before the Civil Service Commission a Petition for
Relief29 on the ground of extrinsic fraud. According to him, the Civil Service Commission
deprived the Province of an opportunity to be heard when it failed to implead the Province
as an indispensable party.30 He reiterated that Marco's appointment was void since the
Province had no funds to pay for Marco's salaries. 31
The Civil Service Commission denied outright the Petition for Relief in the
Resolution32 dated November 4, 2008. It ruled that Provincial Administrator Ocampo had no
legal personality to file the Petition for Relief absent an authorization from the Provincial
Governor. Moreover, a petition for relief was not allowed under the Uniform Rules on
Administrative Cases in the Civil Service. Thus, Provincial Administrator Ocampo erred in
filing a Petition for Relief. 33
Josef Elvin Campos
Provincial Administrator Ocampo filed a Motion for Reconsideration, 34 this time with a
written authority35 to file from Governor Bellafior Angara-Castillo annexed to the Motion. 36
The Civil Service Commission denied the Motion for Reconsideration in the
Resolution37 dated September 8, 2009. It ruled that its April 14, 2008 Resolution had
become final and executory considering that the Province did not file a motion for
reconsideration of this Resolution within the reglementary period. 38
Consequently, Marco requested the Civil Service Commission to implement the April 14,
2008 Resolution.39 Through the Resolution40 dated July 6, 2010, the Commission granted
Marco's request.
Provincial Administrator Ocampo filed a Motion for Reconsideration with Motion to Quash
"Execution,"41 arguing that the April 14, 2008 Resolution had already been implemented. As
the Civil Service Commission had ordered, the Province reflected the April 14, 2008
Resolution.in Marco's appointment papers and in his Service Record. 42
In the Resolution43 dated January 24, 2011, the Civil Service Commission denied the Motion
for Reconsideration with Motion to Quash "Execution." It noted that the Province still
refused to reinstate Marco despite the April 14, 2008 Resolution and thus clarified that this
Resolution necessarily resulted in the approval of Marco's appointment and his
reinstatement as Cooperative Development Specialist II. 44 The January 24, 2011 Resolution
states:chanroblesvirtuallawlibrary
Ocampo, et al. nonchalantly tries to sweep away what is obvious in the ruling of the
Commission in [the April 14, 2008 Resolution], i.e., the reversal of the disapproval by [the
Regional Office] and [the Field Office] of Marco's appointment. The reversal of the two (2)
decisions mean[s] that Marco's appointment as Cooperative Development Specialist II is in
order and should be approved. Consequently, the approval of Marco's appointment is legal
proof that he is entitled to perform the duties and functions of the said position and receive
the salaries and benefits attached to the position.cralawred
WHEREFORE, the Motion for Reconsideration with Motion to Quash of Alex N. Ocampo,

Provincial Administrator, and Manuel Joseph R. Bretana III, Legal Counsel, Provincial
Government of Aurora, is DENIED. Accordingly, [the July 6, 2010 Resolution] which grants
the Motion for the Implementation of [the April 14, 2008 Resolution] filed by Hilario M.
Marco, STANDS.
The Provincial Governor of Aurora is directed to reinstate Marco to his Cooperative

Development Specialist II position and pay his back salaries and other benefits from the
time that Marco was actually prohibited from reporting for work up to his actual
reinstatement.45cralawlawlibrary
A Petition for Review46 under Rule 43 with prayer for issuance of a temporary restraining
order47 was filed before the Court of Appeals. For the first time, the Province argued that
Marco was a midnight appointee since Governor Ong appointed him during the last five (5)
days of her tenure. Therefore, Marco's appointment was void. 48
In the Decision dated March 2, 2012, the Court of Appeals denied the Petition for Review
and affirmed the implementation of the Civil Service Commission's April 14, 2008
Resolution.49
The Court of Appeals ruled that the April 14, 2008 Resolution already became final and
executory since there was no motion for reconsideration filed within the reglementary
period. Although the Province filed a Petition for Relief before the Civil Service Commission,
the Court of Appeals held that the remedy of a petition for relief is not allowed under the
Uniform Rules on Administrative Cases in the Civil Service. Moreover, the Province failed to
prove the extrinsic fraud that allegedly prevented it from filing a motion for reconsideration.
Thus, the Civil Service Commission correctly denied the Petition for Relief. 50
On the merits, the Court of Appeals affirmed Marco's appointment. The Province had earlier
certified that it had funds to pay for his salary as Cooperative Development Specialist II. 51 It
found that the Sangguniang Panlalawigan even passed a "Supplemental Budget for 2004
appropriating P54,014,127.01 in provincial funds." 52 Therefore, the issuance of the Letter
recalling the certification "[did] not change the fact that there [were] funds available for
Josef Elvin Campos
[Marco's] appointment."53
On the claim that Marco was a midnight appointee, the Court of Appeals said that Marco's
case fell within the exception provided under Civil Service Commission Resolution No.
030918.54 He was fully qualified for the position and underwent a screening process on
February 12 and 13, 2004, long before the election ban. 55 Therefore, he was validly
appointed.
The Province filed a Motion for Reconsideration, 56 which the Court of Appeals denied in the
Resolution57 dated June 13, 2012.
The Province filed a Petition for Review on Certiorari before this court. Marco filed his
Comment,58 after which the Province filed its Reply.59
In the Resolution60 dated January 30, 2013, this court ordered the parties to file their
respective memoranda. The Province filed its Memorandum 61 on April 25, 2013, while
Marco filed his Memorandum62 on May 2, 2013.
The Province maintains that Marco's appointment was void on the ground that he was a
midnight appointee. Marco was appointed by Governor Ong five (5) days before the end of
her term, in violation of Civil Service Commission Resolution No. 030918, 63 paragraph 2.1 of
which provides:chanroblesvirtuallawlibrary
2.1. All appointments issued by elective appointing officials after elections up to June 30
shall be disapproved, except if the appointee is fully qualified for the position and had
undergone regular screening processes before the Election Ban as shown in the
Promotion and Selection Board (PSB) report or minutes of meeting.
On Marco's claim that he underwent a regular screening process, which exempted his
appointment from the prohibition on midnight appointments, the Province counters that
Marco failed to present convincing evidence to prove this claim. The Minutes of the Meeting
of the Promotion Selection Board showed that Marco was among the 201 applicants
allegedly screened by the Board within two (2j days. According to the Province, two days is
a period too short for the Personnel Selection Board to have carefully considered all the
applications.64
As to the claim that the April 14, 2008 Resolution is final and executory and may no longer
be reversed, the Province argues that nothing prevents this court from setting aside this
Resolution. It argues that the promulgation of Nazareno, et al. v. City of Dumaguete 65 was a
supervening event warranting the reversal of the final and executory decision. 66
In Nazareno, this court voided 89 appointments made by a city mayor within the month that
he left office, ruling that they were mass appointments prohibited under Civil Service
Commission Resolution No. 010988.67 The Province argues that Governor Ong's
appointments were analogous to the Nazareno appointments; hence, Governor Ong's
appointments should likewise be voided. 68
Finally, the Province insists that Marco's appointment was void due to lack of funds to pay
for the position.69 In ordering the Province to uphold Marco's appointment despite the lack of
funds, the Civil Service Commission allegedly "interfered with [the Province's] prerogative to
draw up its own budget and to spend its ... revenues as it deems fit." 70
For his part, Marco maintains that the Civil Service Commission's Resolution dated April 14,
2008 has long become final and executory. Therefore, the Resolution may no longer be
disturbed.71
On the claim that he was a midnight appointee, Marco pointed out that the Province
belatedly raised this claim. The Province never raised it before the Civil Service
Commission but only did so before the Court of Appeals. 72 By belatedly raising this claim,
the Province should be deemed to have "implicitly recognized" 73 that he was not a midnight
appointee.
In any case, Marco asserts that he was qualified for the position and that he underwent a
selection process as required by Resolution No. 030918. Thus, his appointment was an
exception to the prohibition on midnight appointments. 74
Josef Elvin Campos
On the alleged interference of the Civil Service Commission with the Province's
discretionary power to appoint, Marco argues that it "merely upheld the validity of an
existing appointment[.]"75 The Civil Service Commission did not "[substitute] its own
appointee for the one chosen by the appointing authority." 76 Therefore, it correctly upheld
his appointment.
Lastly, Marco argues that Nazareno does not apply in this case. This court
in Nazareno voided the 89 appointments of the appointing authority based on the criteria set
in Resolution No. 010988.77 However, Nazareno had been promulgated even before he was
appointed in office. Moreover, Resolution No. 010988 did not set any new criteria for
appointments made during the last days of the appointing authority in office. Therefore, the
promulgation of Nazareno is not a supervening event that can set aside the final and
executory April 14, 2008 Resolution. 78
The issues for this court's resolution are:
First, whether the Resolution dated July 6, 2010, which ordered the implementation of the
April 14, 2008 Resolution, was void for varying the terms of the April 14, 2008 Resolution;
Second, whether the withdrawal of the certification of sufficiency of funds voided Marco's
appointment; and
Lastly, whether Marco's appointment was void on the ground that he was a midnight
appointee.
This Petition must be denied.cralawlawlibrary

I
We note that the Province filed an appeal before the Court of Appeals against the Civil
Service Commission's Resolution that ordered the execution of the April 14, 2008
Resolution.79
The Province erred in filing an appeal before the Court of Appeals, as no appeal may be
taken from an order of execution. 80 Instead, it should have filed a petition for certiorari — the
appropriate special civil action under Rule 65 of the Rules of Court. 81
The Court of Appeals, therefore, should have dismissed the Province's appeal outright.
Rule 50, Section 1(i) of the Rules of Court allows the Court of Appeals to dismiss an appeal
where the order appealed from is not appealable. 82
The rule prohibiting appeals from orders of execution is based on the doctrine of
immutability of final judgments. Under this doctrine, a final and executory judgment "is
removed from the power and jurisdiction of the court which rendered it to further alter or
amend it, much less revoke it." 83 The judgment remains immutable even if it is later on
discovered to be erroneous.84 The doctrine "is grounded on fundamental considerations of
public policy and sound practice that at the risk of occasional error, the judgments of the
courts must become final at some definite date fixed by law. To allow courts to amend final
[and executory] judgments will result in endless litigation." 85
The doctrine of immutability of final judgments applies to decisions rendered by the Civil
Service Commission. A decision of the Civil Service Commission becomes final and
executory if no motion for reconsideration is filed within the 15-day reglementary period
under Rule VI, Section 80 of the Uniform Rules on Administrative Cases in the Civil
Service:chanroblesvirtuallawlibrary
Section 80. Execution of Decision. - The decisions of the Commission Proper or its
Regional Offices shall be immediately executory after fifteen (15) days from receipt thereof,
unless a motion for reconsideration is seasonably filed, in which case the execution of the
decision shall be held in abeyance.
In Mendiola v. Civil Service Commission,86 Teodorico Mendiola (Mendiola) occupied the
position of Budget Examiner III when the Economic Intelligence and Investigation Bureau
terminated his employment.87 On Mendiola's appeal, the Civil Service Commission ordered
his reinstatetment in the resolution dated September 21, 1988. 88
Josef Elvin Campos
The Economic Intelligence and Investigation Bureau failed to file a motion for
reconsideration within the 15-day reglementary period. Consequently, Mendiola filed a
motion for execution of the September 21, 1988 resolution. 89
Unknown to Mendiola, the Economic Intelligence and Investigation Bureau belatedly filed a
motion for reconsideration, which the Civil Service Commission granted despite having
been filed out of time. 90
This court reversed the Civil Service Commission's grant of the motion for reconsideration
and ordered Mendiola's reinstatement as the Commission previously ordered in the
September 21, 1998 resolution. This court held that the September 21, 1998 resolution had
become final and executory when the Economic Intelligence and Investigation Bureau failed
to file a motion for reconsideration within the reglementary period. Thus, the Civil Service
Commission may no longer reverse the resolution. 91
In Obiasca v. Basallote,92 Jeane O. Basallote (Basallote) was appointed Administrative

Officer II by the Department of Education and was assigned to work in Tabaco National
High School in Albay. Basallote had assumed the duties of her office as Administrative
Officer II when she learned that Arlin B. Obiasca (Obiasca) was subsequently appointed to
the same position. Obiasca's appointment was attested to by the Civil Service Commission,
while Basallote's appointment papers were not even forwarded to the Civil Service
Commission.93
Basallote protested Obiasca's appointment before the Civil Service Commission Regional
Office V. The Regional Office dismissed the protest. On appeal, the Civil Service
Commission reversed the Regional Office's Decision, thus approving Basallote's
appointment and recalling that of Obiasca. 94
Without filing a motion for reconsideration before the Civil Service Commission, Obiasca
directly filed an appeal before the Court of Appeals. The Court of Appeals affirmed the Civil
Service Commission's Decision.95
Obiasca's Petition for Review on certiorari was likewise denied by this court. 96 This court
held that Obiasca's failure to file a motion for reconsideration rendered the Civil Service
Commission's Decision approving Basallote's appointment final and executory. Thus, the
Civil Service Commission's Decision may no longer be
97
disturbed: ChanRoblesVirtualawlibrary
[Obiasca] did not file a petition for reconsideration of the [Civil Service Commission's
resolution] before filing a petition for review in the [Court of Appeals]. Such fatal procedural
lapse on [Obiasca]'s part allowed the [Civil Service Commission's resolution] to become
final and executory. Hence, for all intents and purposes, the [Civil Service Commission's
resolution] has become immutable and can no longer be amended or modified. A final and
definitive judgment can no longer be changed, revised, amended or reversed. Thus, in
praying for the reversal of the assailed Court of Appeals decision which affirmed the final
and executory [Civil Service Commission resolution], [Obiasca] would want the Court to
reverse a final and executory judgment and disregard the doctrine of immutability of final
judgments.98 (Emphasis in the original, citations omitted)
In this case, the Province, through its Human Resource Management Office, received a
copy of the Civil Service Commission's April 14, 2008 Resolution on May 21, 2008. 99 Thus,
the Province had until June 5, 2008 to file a motion for reconsideration.
However, the Province failed to file a motion for reconsideration of the April 14, 2008
Resolution within the 15-day reglementary period. With no motion for reconsideration
seasonably filed, the April 14, 2008 Resolution-became final and executory on June 6,
2008.
In addition, the remedy of a petition for relief from judgment is not among those provided
under the Uniform Rules on Administrative Cases in the Civil Service. This means that the
remedy is not allowed under civil service rules. 100 Even assuming that a petition for relief
may be filed before the Civil Service Commission, the party must show that the assailed
judgment became final through fraud, accident, mistake, or excusable negligence. 101
Josef Elvin Campos
Here, the Province failed to refute that it received a copy of the Civil Service Commission's
April 14, 2008 Resolution. It was given an opportunity to be heard, which is the essence of
administrative due process.103 It did not even justify why it failed to file a motion for
reconsideration despite its receipt of the Civil Service Commission's Resolution. Contrary to
the Province's claim, there was no extrinsic fraud since the Province was not prevented
"from fully and fairly presenting [its] defense[.]" 104 The Civil Service Commission correctly
denied the Province's Petition for Relief.
Since the April 14, 2008 Resolution already became final and executory, it may no longer
be reversed. The Civil Service Commission correctly granted Marco's request for the
Resolution's implementation.cralawlawlibrary
II
In implementing the April 14, 2008 Resolution, the Civil Service Commission ordered the
Province to reinstate Marco and to pay him back salaries and other
benefits:chanroblesvirtuallawlibrary
WHEREFORE, the request of Hilario M. Marco, Cooperative Development Specialist II,
Provincial Government of Aurora, for the implementation of CSC Resolution No. 08-0656
dated April 14, 2008 is GRANTED. Accordingly, the Provincial Government of Aurora is
directed to reinstate Marco to his former position and the payment of his back salaries and
other benefits starting from the date he was advised to stop reporting for work on July 8,
2004 up to his actual reinstatement.105cralawlawlibrary
According to the Province, the Civil Service Commission went beyond the order sought to
be implemented and "varie[d] the term of the judgment." 106 The Province claims that nothing
in the April 14, 2008 Resolution ordered the reinstatement of Marco. The dispositive portion
of the resolution stated:107ChanRoblesVirtualawlibrary
WHEREFORE, the appeal of Hilario M. Marco is GRANTED. Accordingly, the Decision No.
05-0212 dated April 6, 2005 of the Civil Service Commission Regional Office IV, Quezon
City, affirming the disapproval of the appointment of Marco for lack of certification of
availability of funds is REVERSED and SET ASIDE.
The Civil Service Commission Field Office-Aurora is directed to reflect this decision in the
appointment of Marco and in his Service Record. 108cralawlawlibrary
Therefore, the Province claims that the order implementing the April 14, 2008 Resolution
must be set aside.
We rule that the Civil Service Commission did not vary the terms of the April 14, 2008
Resolution.
Under Rule IV, Section 1 of Civil Service Commission Memorandum Circular No. 40-98, an
appointment takes effect immediately upon issuance by the appointing authority. Once the
appointee has assumed the duties of the position, he or she is entitled to receive the
salaries corresponding with the position though the Civil Service Commission has not yet
approved the appointment.
Should the appointment be initially disapproved, it nevertheless remains effective if a motion

for reconsideration or an appeal of the disapproval is seasonably filed with the proper
office.109 Therefore, during the pendency of the motion for reconsideration, the appointee
remains entitled to his or her salaries until the appointment is finally disapproved by the Civil
Service Commission.110
Marco's appointment immediately took effect on June 25, 2004 when Governor Ong
appointed him as Cooperative Development Specialist II. Although his appointment was
initially disapproved by the Field Office, Marco seasonably filed a Motion for
Reconsideration before the Civil Service Commission. Thus, Marco's appointment remained
effective during the pendency of the Motion for Reconsideration.
Because the Civil Service Commission granted his Motion for Reconsideration and set
aside the disapproval of his appointment, Marco remained entitled to his position. The
necessary consequence of granting reconsideration is his reinstatement as Cooperative
Development Specialist II.
The Civil Service Commission correctly implemented the April 14, 2008 Resolution by
Josef Elvin Campos
ordering Marco's reinstatement and the payment of his back salaries and other
benefits.cralawlawlibrary
III
The Province contends that the Civil Service Commission erred in approving Marco's
appointment as Cooperative Development Specialist II. It allegedly had no funds to cover
the position. Therefore, the appointment was void, having been issued in violation of Rule
V, Section 1(e)(ii) of the Civil Service Commission Memorandum Circular No. 40-98. The
rule states:chanroblesvirtuallawlibrary
SECTION 1. In addition to the common requirements and procedures, the following
requirements and guidelines shall also be observed and the necessary documents
submitted, when applicable.
....
e. LGU Appointment. Appointment in local government units for submission to the
Commission shall be accompanied, in addition to the common requirements, by the
following
....
ii. Certification by the Municipal/City/Provincial Accountant/Budget Officer that funds are
available.
The certification ensures that the appointee shall occupy a position adequately covered by
appropriations as required by Section 325(e) of the Local Government
Code:chanroblesvirtuallawlibrary
SECTION 325. General Limitations. - The use of the provincial, city, and municipal funds
shall be subject to the following limitations:
. . . .
(e) Positions in the official plantilla for career positions which are occupied by incumbents
holding permanent appointments shall be covered by adequate appropriations[.]
As required by Rule V, Section 1 (e)(ii) of the Civil Service Commission Memorandum
Circular No. 40-98, Marco's appointment was accompanied by a certification from the
Province, through the Provincial Budget Officer and the Provincial Accountant, that funds
were available under the 2004 Annual Budget of the Province for the 26 positions issued by
Governor Ong. Therefore, there was no violation of Rule V, Section 1(e)(ii) of the Civil
Service Commission Memorandum Circular No. 40-98. There was no violation of existing
Civil Service Law, rules and regulations. Marco's appointment remains effective.
That the Province suddenly had no funds to pay for Marco's salaries despite its earlier
certification that funds were available under its 2004 Annual Budget does not affect his
appointment.
None of the grounds for disapproval, of an appointment under Rule V, Section 7 111 of the
Omnibus Rules Implementing the Civil Service Law exists in this case. The appointment
remains effective, and the local government unit remains liable for the salaries of the
appointee.112
Moreover, the earlier certification, if proven false, constitutes intentional misrepresentation

of a material fact concerning a civil service matter. This is an offense punishable by fine, or
imprisonment, or both as provided under Section 67 of the Civil Service
Law:chanroblesvirtuallawlibrary
SEC. 67. Penal Provision. — Whoever makes any appointment or employs any person in
violation of any provision of this Title or the rules made thereunder or whoever commits
fraud, deceit or intentional misrepresentation of material facts concerning other civil service
matters, or whoever violates, refuses or neglects to comply with any of such provisions or
rules, shall upon conviction be punished by a fine not exceeding one thousand pesos or by
imprisonment not exceeding six (6) months, or both such fine and imprisonment in the
discretion of the court.
We, therefore, agree with the Civil Service Commission in ordering the Regional Office to
commence appropriate administrative proceedings against Provincial Budget Officer Norma
R. Clemente and Provincial Accountant Wilfredo C. Saturno for issuing the certification of
availability of funds:chanroblesvirtuallawlibrary
The Commission disapproves of the conduct of the officials of the Provincial Government of
Aurora in issuing a certification dated June 25, 2004 that funds are available in the 2004
Josef Elvin Campos
Annual Budget to support the appointments issued by outgoing Governor Ong and then
later [withdrawing] the same when a new governor assumes office. As such, the CSCRO
No. IV is directed to conduct the appropriate administrative proceedings to determine
whether Norma R. Clemente (Provincial Budget Officer) and Wilfredo C. Saturno (Provincial
Accountant) violated Civil Service Law, rules and regulations. 113cralawlawlibrary
IV
The Province claims that Marco was a midnight appointee. Moreover, he was among those
appointed "en masse"114 by Governor Ong before the end of her term. Thus, the Civil
Service Commission should have disapproved Marco's appointment.
A midnight appointment "refers to those appointments made within two months immediately
prior to the next presidential election." 115 Midnight appointments are prohibited under Article
VII, Section 15 of the Constitution:chanroblesvirtuallawlibrary
end of his term, a President or Acting President shall not make appointments, except
prejudice public service or endanger public safety.
Midnight appointments are prohibited because an outgoing President is "duty bound to
prepare for the orderly transfer of authority to the incoming President, and he [or she]
should not do acts which he [or she] ought to know, would embarrass or obstruct the
policies of his [or her] successor." 116 An outgoing President should not "deprive the new
administration of an opportunity to make the corresponding appointments." 117
However, the constitutiona prohibition on midnight appointments only applies to presidential

appointments. It does not apply to appointments made by local chief executives.
In De Rama v. Court of Appeals,118 Mayor Conrado L. de Rama (Mayor de Rama) of

Pagbilao, Quezon sought to recall 14 appointments made by former Mayor Ma. Evelyn S.
Abeja on the sole ground that they were midnight appointments. 119 The Civil Service
Commission denied Mayor de Rama's request, ruling that the prohibition on midnight
appointments only applies to outgoing Presidents. 120 On appeal, the Court of Appeals
affirmed the Civil Service Commission's decision. 121
This court agreed with the Civil Service Commission and the Court of Appeals. In denying
Mayor de Rama's petition for review on certiorari, this court said that the prohibition on
midnight appointments "applies only to presidential appointments." 122 This court noted that
"there is no law that prohibits local elective officials from making appointments during the
last days of his or her tenure." 123
Nonetheless, the Civil Service Commission, as the central personnel agency of the
Government,124 may "establish rules and regulations to promote efficiency and
professionalism in the civil service."125 Although it conceded that no law prohibits local
elective officials from making appointments during the last days of their tenure, this court
in Nazareno upheld Civil Service Commission Resolution No. 010988, which prohibited
local elective officials from making appointments immediately before and after
elections.126 In addition, Resolution No. 010988 prohibited "mass appointments," or those
"issued in bulk or in large number after the elections by an outgoing local chief executive
and there is no apparent need for their immediate issuance." Resolution No. 010988
states:chanroblesvirtuallawlibrary
WHEREAS, the May 14, 2001 national and local elections have just concluded and the
Commission anticipates controversies that would arise involving appointments issued by
outgoing local chief executives immediately before and after elections;
WHEREAS, the Commission observed the tendency of some outgoing local chief

executives to issue appointments even after the elections, especially when their successors
have already been proclaimed;
WHEREAS, this practice of some outgoing local chief executives causes animosities

between the outgoing and incoming officials and the people who are immediately affected
and made to suffer the consequences thereof are the ordinary civil servants and eventually,
to a larger extent, their constituents themselves;
Josef Elvin Campos
WHEREAS, one of the reasons behind the prohibition in issuing appointments or hiring of
new employees during the prohibited period as provided for in CSC Memorandum Circular
No. 7, series of 2001 is to prevent the occurrence of the foregoing, among others;
WHEREAS, local elective officials, whose terms of office are about to expire, are deemed
as "caretaker" administrators who are duty bound to prepare for the smooth and orderly
transfer of power and authority to the incoming local chief executives;
WHEREAS, under Section 15, Article VII of the Constitution, the President or Acting
President is prohibited from making appointments two (2) months immediately before the
next presidential elections and up to the end of his term, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or
endanger public safety;
WHEREAS, while there is no equivalent provision in the Local Government Code of 1991

(Republic Act No. 7160) or in the Civil Service Law (Book V of Executive Order No. 292) of
the above-stated prohibition, the rationale against the prohibition on the issuance of
"midnight appointments" by the President is applicable to appointments extended by
outgoing local chief executives immediately before and/or after the elections; and
WHEREAS, the Commission also deems it fit to issue guidelines that would assist
processors in their actions on appointments issued by theses outgoing local chief
executives immediately before and/or after the elections;
NOW THEREFORE, the Commission, pursuant to its constitutional mandate as the central

personnel agency of the government, hereby issues and adopts the following guidelines:
1. The validity of an appointment issued immediately before or after the
elections by outgoing local chief executives is to be determined on the basis
of the nature, character and merit of the individual appointment and the
particular circumstances surrounding the same.
....
3. All appointments, whether original, transfer, reemployment, reappointment,
promotion or demotion, except in cases of renewal and reinstatement,
regardless of status, which are issued AFTER the elections, regardless of
their dates of effectivity and/or date of receipt by the Commission, including
its Regional or Field Offices, of said appointments or the Report of Personnel
Actions (ROPA), as the case may be, shall be disapproved unless the
following requisites concur relative to their issuance:
a) The appointment has gone through the regular screening by the Personnel Selection
Board (PSB) before the prohibited period on the issuance of appointments as shown by
the PSB report or minutes of its meeting;
b) That the appointee is qualified;
c) There is a need to fill up the vacancy immediately in order not to prejudice public
service and/or endanger public safety;
d) That the appointment is not one of those mass appointments issued after the elections.
4. The term "mass appointments" refers to those issued in bulk or in large
number after the elections by an outgoing local chief executive and there is
no apparent need for their immediate issuance.
This court said that the rationale behind Resolution No. 010988 "is not difficult to
see":127ChanRoblesVirtualawlibrary
Appointments are banned prior to the elections to ensure that partisan loyalties will not be a
factor in the appointment process, and to prevent incumbents from gaining any undue
advantage during the elections. To this end, appointments within a certain period of time are
proscribed by the Omnibus Election Code and related issuances. After the elections,
appointments by defeated candidates are prohibited, except under the circumstances
mentioned in CSC Resolution No. 010988, to avoid animosities between outgoing and
incoming officials, to allow the incoming administration a free hand in implementing its
policies, and to ensure that appointments and promotions are not used as a tool for political
patronage or as a reward for services rendered to the outgoing local officials. 128 (Citation
omitted)
In Nazareno, this court affirmed the disapproval of 89 appointments Mayor Felipe Antonio
B. Remollo (Mayor Remollo) of Dumaguete City made within the month that he left office.
This court found that the appointments were issued in violation of Resolution No. 010988.
Josef Elvin Campos
Particularly, it found no evidence that the Personnel Selection Board carefully deliberated
on the qualifications of Mayor Remollo's appointees. 129 Moreover, the timing and the large
number of appointments "indicate that the appointments were hurriedly issued by the
outgoing administration."130
The Province argues that the 26 appointments Governor Ong issued during the last days of
her tenure were similar to those Mayor Remollo issued in Nazareno. Governor Ong
allegedly issued mass appointments, the immediate issuance of which the Province had no
apparent need.
We note, however, that Resolution No. 010988 — the Resolution effective when Mayor
Remollo issued the appointments in Nazareno — was superseded by Resolution No.
030918 dated August 28, 2003.131 Resolution No. 030918 on "midnight appointments" by
local chief executives was effective at the time Governor Ong issued the disputed
appointments. Resolution No. 030918 states, in part:chanroblesvirtuallawlibrary
WHEREAS, under Section 3, Article IX-B of the 1987 Constitution, the Commission, as the
central personnel agency of the Government, is mandated to establish a career service and
adopt measures to promote efficiency, integrity, responsiveness, progressiveness and
courtesy in the civil service, among others;
WHEREAS, the Constitution further mandates the Commission to issue its own rules and
regulations for effective and efficient personnel administration in the Civil Service;
WHEREAS, Section 12(1) and (2), Book V of the Executive Order No. 292 (Administrative
Code of 1987) mandates the Commission to administer and enforce the constitutional and
statutory provisions on the merit system for all ranks and levels in the Civil Service and to
prescribe, amend and enforce rules and regulations for carrying into effect the provision of
the Civil Service Law and other pertinent laws;
WHEREAS, problems and controversies inevitably arise involving appointments issued by

outgoing elective and appointive officials just before and after election periods;
WHEREAS, personnel morale, office operations, and delivery of public services are

inevitably disrupted by such problem's and controversies;
WHEREAS, there is a need to forestall such problems by defining and making more

stringent the restrictions on personnel appointments to be observed by outgoing appointing
officials, elective or appointive, before they leave office;
NOW, THEREFORE, the Commission, pursuant to its constitutional and statutory mandates

as the central personnel agency of the government, hereby issues and adopts the following
guidelines:
. . . .
2. Action on Appointments issued by Elective and Appointive Officials After the

Elections Up to June 30
2.1. All appointments issued by elective appointing officials after elections up to June 30
shall be disapproved, except if the appointee is fully qualified for the position and had
undergone regular screening processes before the Election Ban as shown in the
Promotion and Selection Board (PSB) report or minutes of meeting.
. . . .
This Resolution supersedes CSC Resolution No. 010988 dated 4 June 2001 and shall take
effect fifteen (15) days after its publication in a newspaper of general circulation.
Quezon City, August 28, 2003.

Since Resolution No. 030918 was effective at the time Governor Ong issued the 26
appointments, we must decide this case based on Resolution No. 030918. Nazareno is not
applicable, as it was decided based on Resolution No. 0109888.
We agree with the Civil Service Commission and the Court of Appeals that Governor Ong
Josef Elvin Campos
issued Marco's appointment in accordance with Resolution No. 030918. Although his
appointment was made five (5) days before the end of Governor Ong's term, Marco was
fully qualified for the position and had undergone regular screening processes before the
election ban. As the Civil Service Commission found, Marco "applied for the [position of
Cooperative Development Specialist II] [and] passed the screening conducted by the
Personnel Selection Board (PSB) on February 12 & 13, 2004[.]" 132 The Court of Appeals
reiterated this finding in its Decision dated March 2, 2012. 133 Absent a showing of grave
abuse of discretion, this court will not disturb the findings of fact of the Civil Service
Commission,134 especially since it has acquired "specialized knowledge and expertise" 135 in
the field of civil service law.
Assuming without conceding that Governor Ong's 26 appointments were issued in bulk,
this per se does not invalidate the appointments. Unlike Resolution No. 010988, Resolution
No. 030918 does not prohibit appointments that are large in number. Moreover, 26
appointments can hardly be classified as "mass appointments," compared with the 89
appointments this court invalidated in Nazareno.
Marco's appointment was valid. The Civil Service Commission correctly approved his
appointment.
Considering that Marco had already accepted his appointment by the time the Province
prevented him from assuming his office, his appointment remains effective up to the
present.136 Consequently, the Civil Service Commission correctly ordered the Province to
reinstate Marco as Cooperative Development Specialist II and to pay him his back salaries
from July 8, 2004 when the Province prevented him from reporting for work up to his actual
reinstatement.cralawred
WHEREFORE, the Petition for Review on Certiorari is DENIED. The Court of Appeals

Decision dated March 2, 2012 is affirmed.
SO ORDERED.chanroblesvirtuallawlibrary
Carpio, (Chairperson), Del Castillo, Perez,* and Mendoza, JJ., concur.
V. Intergovernmental Relations
A. With the National Government and its agencies (read Sec. 11, Art. X,
Constitution)
Section 11. The Congress may, by law, create special metropolitan political
subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The
component cities and municipalities shall retain their basic autonomy and
shall be entitled to their own local executive and legislative assemblies. The
jurisdiction of the metropolitan authority that will thereby be created shall be
limited to basic services requiring coordination.
Cases:
MMDA v. Viron Transportation Co., Inc. (G.R. No. 170656, 15 August 2007)
G.R. No. 170656 August 15, 2007
THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY and BAYANI FERNANDO
as Chairman of the Metropolitan Manila Development Authority, petitioners,
vs.
VIRON TRANSPORTATION CO., INC., respondent.
x --------------------------------------------- x
G.R. No. 170657 August 15, 2007
HON. ALBERTO G. ROMULO, Executive Secretary, the METROPOLITAN MANILA
DEVELOPMENT AUTHORITY and BAYANI FERNANDO as Chairman of the
Metropolitan Manila Development Authority, petitioners,
vs.
MENCORP TRANSPORTATION SYSTEM, INC., respondent.
DECISION
CARPIO MORALES, J.:
The following conditions in 1969, as observed by this Court:
Josef Elvin Campos
Vehicles have increased in number. Traffic congestion has moved from bad to
worse, from tolerable to critical. The number of people who use the thoroughfares
has multiplied x x x,1
have remained unchecked and have reverberated to this day. Traffic jams continue to clog
the streets of Metro Manila, bringing vehicles to a standstill at main road arteries during rush
hour traffic and sapping people’s energies and patience in the process.
The present petition for review on certiorari, rooted in the traffic congestion problem,
questions the authority of the Metropolitan Manila Development Authority (MMDA) to order
the closure of provincial bus terminals along Epifanio de los Santos Avenue (EDSA) and
major thoroughfares of Metro Manila.
Specifically challenged are two Orders issued by Judge Silvino T. Pampilo, Jr. of the
Regional Trial Court (RTC) of Manila, Branch 26 in Civil Case Nos. 03-105850 and 03-
106224.
The first assailed Order of September 8, 2005, 2 which resolved a motion for reconsideration
filed by herein respondents, declared Executive Order (E.O.) No. 179, hereafter referred to
as the E.O., "unconstitutional as it constitutes an unreasonable exercise of police power."
The second assailed Order of November 23, 2005 3 denied petitioners’ motion for
reconsideration.
The following facts are not disputed:
President Gloria Macapagal Arroyo issued the E.O. on February 10, 2003, "Providing for the
Establishment of Greater Manila Mass Transport System," the pertinent portions of which
read:
WHEREAS, Metro Manila continues to be the center of employment
opportunities, trade and commerce of the Greater Metro Manila area;
WHEREAS, the traffic situation in Metro Manila has affected the adjacent
provinces of Bulacan, Cavite, Laguna, and Rizal, owing to the continued
movement of residents and industries to more affordable and economically
viable locations in these provinces;
WHEREAS, the Metropolitan Manila Development Authority (MMDA) is
tasked to undertake measures to ease traffic congestion in Metro Manila and
ensure the convenient and efficient travel of commuters within its jurisdiction;
WHEREAS, a primary cause of traffic congestion in Metro Manila has been
the numerous buses plying the streets that impedes [sic] the flow of vehicles
and commuters due to the inefficient connectivity of the different transport
modes;
WHEREAS, the MMDA has recommended a plan to decongest traffic by
eliminating the bus terminals now located along major Metro Manila
thoroughfares and providing more convenient access to the mass transport
system to the commuting public through the provision of mass transport
terminal facilities that would integrate the existing transport modes, namely
the buses, the rail-based systems of the LRT, MRT and PNR and to facilitate
and ensure efficient travel through the improved connectivity of the different
transport modes;
WHEREAS, the national government must provide the necessary funding
requirements to immediately implement and render operational these
projects; and extent to MMDA such other assistance as may be warranted to
ensure their expeditious prosecution.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Philippines, by virtue of the powers vested in me by law, do hereby order:
Section 1. THE PROJECT. – The project shall be identified as GREATER
MANILA TRANSPORT SYSTEM Project.
Section 2. PROJECT OBJECTIVES. – In accordance with the plan proposed
by MMDA, the project aims to develop four (4) interim intermodal mass
transport terminals to integrate the different transport modes, as well as those
that shall hereafter be developed, to serve the commuting public in the
northwest, north, east, south, and southwest of Metro Manila. Initially, the
project shall concentrate on immediately establishing the mass transport
terminals for the north and south Metro Manila commuters as hereinafter
described.
Section 3. PROJECT IMPLEMENTING AGENCY. – The Metropolitan
Manila Development Authority (MMDA), is hereby designated as the
implementing Agency for the project. For this purpose, MMDA is directed to
undertake such infrastructure development work as may be necessary and,
Josef Elvin Campos
thereafter, manage the project until it may be turned-over to more appropriate
agencies, if found suitable and convenient. Specifically, MMDA shall have the
following functions and responsibilities:
a) Cause the preparation of the Master Plan for the projects,
including the designs and costing;
b) Coordinate the use of the land and/or properties needed for
the project with the respective agencies and/or entities owning
them;
c) Supervise and manage the construction of the necessary
structures and facilities;
d) Execute such contracts or agreements as may be
necessary, with the appropriate government agencies, entities,
and/or private persons, in accordance with existing laws and
pertinent regulations, to facilitate the implementation of the
project;
e) Accept, manage and disburse such funds as may be
necessary for the construction and/or implementation of the
projects, in accordance with prevailing accounting and audit
polices and practice in government.
f) Enlist the assistance of any national government agency,
office or department, including local government units,
government-owned or controlled corporations, as may be
necessary;
g) Assign or hire the necessary personnel for the above
purposes; and
h) Perform such other related functions as may be necessary to
enable it to accomplish the objectives and purposes of this
Executive Order.4 (Emphasis in the original; underscoring
supplied)
As the above-quoted portions of the E.O. noted, the primary cause of traffic congestion in
Metro Manila has been the numerous buses plying the streets and the inefficient
connectivity of the different transport modes; 5 and the MMDA had "recommended a plan to
decongest traffic by eliminating the bus terminals now located along major Metro Manila
thoroughfares and providing more and convenient access to the mass transport system to
the commuting public through the provision of mass transport terminal facilities" 6 which plan
is referred to under the E.O. as the Greater Manila Mass Transport System Project (the
Project).
The E.O. thus designated the MMDA as the implementing agency for the Project.
Pursuant to the E.O., the Metro Manila Council (MMC), the governing board and
policymaking body of the MMDA, issued Resolution No. 03-07 series of 2003 7 expressing
full support of the Project. Recognizing the imperative to integrate the different transport
modes via the establishment of common bus parking terminal areas, the MMC cited the
need to remove the bus terminals located along major thoroughfares of Metro Manila. 8
On February 24, 2003, Viron Transport Co., Inc. (Viron), a domestic corporation engaged in
the business of public transportation with a provincial bus operation, 9 filed a petition for
declaratory relief10 before the RTC11 of Manila.
In its petition which was docketed as Civil Case No. 03-105850, Viron alleged that the
MMDA, through Chairman Fernando, was "poised to issue a Circular, Memorandum or
Order closing, or tantamount to closing, all provincial bus terminals along EDSA and in the
whole of the Metropolis under the pretext of traffic regulation." 12 This impending move, it
stressed, would mean the closure of its bus terminal in Sampaloc, Manila and two others in
Quezon City.
Alleging that the MMDA’s authority does not include the power to direct provincial bus
operators to abandon their existing bus terminals to thus deprive them of the use of their
property, Viron asked the court to construe the scope, extent and limitation of the power of
the MMDA to regulate traffic under R.A. No. 7924, "An Act Creating the Metropolitan Manila
Development Authority, Defining its Powers and Functions, Providing Funds Therefor and
For Other Purposes."
Viron also asked for a ruling on whether the planned closure of provincial bus terminals
would contravene the Public Service Act and related laws which mandate public utilities to
provide and maintain their own terminals as a requisite for the privilege of operating as
common carriers.13
Josef Elvin Campos
Mencorp Transportation System, Inc. (Mencorp), another provincial bus operator, later filed
a similar petition for declaratory relief 14 against Executive Secretary Alberto G. Romulo and
MMDA Chairman Fernando.
Mencorp asked the court to declare the E.O. unconstitutional and illegal for transgressing
the possessory rights of owners and operators of public land transportation units over their
respective terminals.
Averring that MMDA Chairman Fernando had begun to implement a plan to close and
eliminate all provincial bus terminals along EDSA and in the whole of the metropolis and to
transfer their operations to common bus terminals, 15 Mencorp prayed for the issuance of a
temporary restraining order (TRO) and/or writ of preliminary injunction to restrain the
impending closure of its bus terminals which it was leasing at the corner of EDSA and New
York Street in Cubao and at the intersection of Blumentritt, Laon Laan and Halcon Streets in
Quezon City. The petition was docketed as Civil Case No. 03-106224 and was raffled to
Branch 47 of the RTC of Manila.
Mencorp’s petition was consolidated on June 19, 2003 with Viron’s petition which was
raffled to Branch 26 of the RTC, Manila.
Mencorp’s prayer for a TRO and/or writ of injunction was denied as was its application for
the issuance of a preliminary injunction.16
In the Pre-Trial Order17 issued by the trial court, the issues were narrowed down to whether
1) the MMDA’s power to regulate traffic in Metro Manila included the power to direct
provincial bus operators to abandon and close their duly established and existing bus
terminals in order to conduct business in a common terminal; (2) the E.O. is consistent with
the Public Service Act and the Constitution; and (3) provincial bus operators would be
deprived of their real properties without due process of law should they be required to use
the common bus terminals.
Upon the agreement of the parties, they filed their respective position papers in lieu of
hearings.
By Decision18 of January 24, 2005, the trial court sustained the constitutionality and legality
of the E.O. pursuant to R.A. No. 7924, which empowered the MMDA to administer Metro
Manila’s basic services including those of transport and traffic management.
The trial court held that the E.O. was a valid exercise of the police power of the State as it
satisfied the two tests of lawful subject matter and lawful means, hence, Viron’s and
Mencorp’s property rights must yield to police power.
On the separate motions for reconsideration of Viron and Mencorp, the trial court, by Order
of September 8, 2005, reversed its Decision, this time holding that the E.O. was "an
unreasonable exercise of police power"; that the authority of the MMDA under Section (5)(e)
of R.A. No. 7924 does not include the power to order the closure of Viron’s and Mencorp’s
existing bus terminals; and that the E.O. is inconsistent with the provisions of the Public
Service Act.
Petitioners’ motion for reconsideration was denied by Resolution of November 23, 2005.
Hence, this petition, which faults the trial court for failing to rule that: (1) the requisites of
declaratory relief are not present, there being no justiciable controversy in Civil Case Nos.
03-105850 and 03-106224; and (2) the President has the authority to undertake or cause
the implementation of the Project.19
Petitioners contend that there is no justiciable controversy in the cases for declaratory relief
as nothing in the body of the E.O. mentions or orders the closure and elimination of bus
terminals along the major thoroughfares of Metro Manila. Viron and Mencorp, they argue,
failed to produce any letter or communication from the Executive Department apprising
them of an immediate plan to close down their bus terminals.
And petitioners maintain that the E.O. is only an administrative directive to government
agencies to coordinate with the MMDA and to make available for use government property
along EDSA and South Expressway corridors. They add that the only relation created by
the E.O. is that between the Chief Executive and the implementing officials, but not between
third persons.
The petition fails.
It is true, as respondents have pointed out, that the alleged deficiency of the consolidated
petitions to meet the requirement of justiciability was not among the issues defined for
resolution in the Pre-Trial Order of January 12, 2004. It is equally true, however, that the
question was repeatedly raised by petitioners in their Answer to Viron’s petition, 20 their
Comment of April 29, 2003 opposing Mencorp’s prayer for the issuance of a TRO, 21 and
their Position Paper of August 23, 2004.22
In bringing their petitions before the trial court, both respondents pleaded the existence of
the essential requisites for their respective petitions for declaratory relief, 23 and refuted
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petitioners’ contention that a justiciable controversy was lacking. 24 There can be no denying,
therefore, that the issue was raised and discussed by the parties before the trial court.
The following are the essential requisites for a declaratory relief petition: (a) there must be a
justiciable controversy; (b) the controversy must be between persons whose interests are
adverse; (c) the party seeking declaratory relief must have a legal interest in the
controversy; and (d) the issue invoked must be ripe for judicial determination. 25
The requirement of the presence of a justiciable controversy is satisfied when an actual
controversy or the ripening seeds thereof exist between the parties, all of whom are sui
juris and before the court, and the declaration sought will help in ending the controversy. 26 A
question becomes justiciable when it is translated into a claim of right which is actually
contested.27
In the present cases, respondents’ resort to court was prompted by the issuance of the E.O.
The 4th Whereas clause of the E.O. sets out in clear strokes the MMDA’s plan to
"decongest traffic by eliminating the bus terminals now located along major Metro Manila
thoroughfares and providing more convenient access to the mass transport system to the
commuting public through the provision of mass transport terminal facilities x x x."
(Emphasis supplied)
Section 2 of the E.O. thereafter lays down the immediate establishment of common bus
terminals for north- and south-bound commuters. For this purpose, Section 8 directs the
Department of Budget and Management to allocate funds of not more than one hundred
million pesos (P100,000,000) to cover the cost of the construction of the north and south
terminals. And the E.O. was made effective immediately.
The MMDA’s resolve to immediately implement the Project, its denials to the contrary
notwithstanding, is also evident from telltale circumstances, foremost of which was the
passage by the MMC of Resolution No. 03-07, Series of 2003 expressing its full support of
the immediate implementation of the Project.
Notable from the 5th Whereas clause of the MMC Resolution is the plan to "remove the bus
terminals located along major thoroughfares of Metro Manila and an urgent need to
integrate the different transport modes." The 7th Whereas clause proceeds to mention the
establishment of the North and South terminals.
As alleged in Viron’s petition, a diagram of the GMA-MTS North Bus/Rail Terminal had been
drawn up, and construction of the terminal is already in progress. The MMDA, in its
Answer28 and Position Paper,29 in fact affirmed that the government had begun to implement
the Project.
It thus appears that the issue has already transcended the boundaries of what is merely
conjectural or anticipatory.lawphil
Under the circumstances, for respondents to wait for the actual issuance by the MMDA of
an order for the closure of respondents’ bus terminals would be foolhardy for, by then, the
proper action to bring would no longer be for declaratory relief which, under Section 1, Rule
6330 of the Rules of Court, must be brought before there is a breach or violation of rights.
As for petitioners’ contention that the E.O. is a mere administrative issuance which creates
no relation with third persons, it does not persuade. Suffice it to stress that to ensure the
success of the Project for which the concerned government agencies are directed to
coordinate their activities and resources, the existing bus terminals owned, operated or
leased by third persons like respondents would have to be eliminated; and respondents
would be forced to operate from the common bus terminals.
It cannot be gainsaid that the E.O. would have an adverse effect on respondents. The
closure of their bus terminals would mean, among other things, the loss of income from the
operation and/or rentals of stalls thereat. Precisely, respondents claim a deprivation of their
constitutional right to property without due process of law.
Respondents have thus amply demonstrated a "personal and substantial interest in the
case such that [they have] sustained, or will sustain, direct injury as a result of [the E.O.’s]
enforcement."31 Consequently, the established rule that the constitutionality of a law or
administrative issuance can be challenged by one who will sustain a direct injury as a result
of its enforcement has been satisfied by respondents.
On to the merits of the case.
Respondents posit that the MMDA is devoid of authority to order the elimination of their bus
terminals under the E.O. which, they argue, is unconstitutional because it violates both the
Constitution and the Public Service Act; and that neither is the MMDA clothed with such
authority under R.A. No. 7924.
Petitioners submit, however, that the real issue concerns the President’s authority to
undertake or to cause the implementation of the Project. They assert that the authority of
the President is derived from E.O. No. 125, "Reorganizing the Ministry of Transportation
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and Communications Defining its Powers and Functions and for Other Purposes," her
residual power and/or E.O. No. 292, otherwise known as the Administrative Code of 1987.
They add that the E.O. is also a valid exercise of the police power.
E.O. No. 125,32 which former President Corazon Aquino issued in the exercise of legislative
powers, reorganized the then Ministry (now Department) of Transportation and
Communications. Sections 4, 5, 6 and 22 of E.O. 125, as amended by E.O. 125-A, 33 read:
SECTION 4. Mandate. — The Ministry shall be the primary policy, planning,
programming, coordinating, implementing, regulating and administrative entity
of the Executive Branch of the government in the promotion, development and
regulation of dependable and coordinated networks of transportation and
communication systems as well as in the fast, safe, efficient and reliable postal,
transportation and communications services.
To accomplish such mandate, the Ministry shall have the following objectives:
(a) Promote the development of dependable and coordinated networks
of transportation and communications systems;
(b) Guide government and private investment in the development
of the country’s intermodal transportation and communications
systems in a most practical, expeditious, and orderly fashion for
maximum safety, service, and cost effectiveness; (Emphasis and
xxxx
SECTION 5. Powers and Functions. — To accomplish its mandate, the Ministry shall
have the following powers and functions:
(a) Formulate and recommend national policies and guidelines for the
preparation and implementation of integrated and comprehensive
transportation and communications systems at the national, regional
and local levels;
(b) Establish and administer comprehensive and integrated
programs for transportation and communications, and for this
purpose, may call on any agency, corporation, or organization,
whether public or private, whose development programs include
transportation and communications as an integral part thereof, to
participate and assist in the preparation and implementation of such
program;
(c) Assess, review and provide direction to transportation and
communications research and development programs of the
government in coordination with other institutions concerned;
(d) Administer all laws, rules and regulations in the field of
transportation and communications; (Emphasis and underscoring
supplied)
xxxx
SECTION 6. Authority and Responsibility. — The authority and responsibility for
the exercise of the mandate of the Ministry and for the discharge of its powers
and functions shall be vested in the Minister of Transportation and
Communications, hereinafter referred to as the Minister, who shall have
supervision and control over the Ministry and shall be appointed by the President.
SECTION 22. Implementing Authority of Minister. — The Minister shall issue such
orders, rules, regulations and other issuances as may be necessary to ensure
the effective implementation of the provisions of this Executive Order.
It is readily apparent from the abovequoted provisions of E.O. No. 125, as amended, that
the President, then possessed of and exercising legislative powers, mandated the DOTC to
be the primary policy, planning, programming, coordinating, implementing, regulating and
administrative entity to promote, develop and regulate networks of transportation and
communications. The grant of authority to the DOTC includes the power
to establish and administer comprehensive and integrated programs for transportation
and communications.
As may be seen further, the Minister (now Secretary) of the DOTC is vested with the
authority and responsibility to exercise the mandate given to the department. Accordingly,
the DOTC Secretary is authorized to issue such orders, rules, regulations and other
issuances as may be necessary to ensure the effective implementation of the law.
Josef Elvin Campos
Since, under the law, the DOTC is authorized to establish and administer programs and
projects for transportation, it follows that the President may exercise the same power and
authority to order the implementation of the Project, which admittedly is one for
transportation.
Such authority springs from the President’s power of control over all executive departments
as well as the obligation for the faithful execution of the laws under Article VII, Section 17 of
the Constitution which provides:
SECTION 17. The President shall have control of all the executive departments,
bureaus and offices. He shall ensure that the laws be faithfully executed.
This constitutional provision is echoed in Section 1, Book III of the Administrative Code of
1987. Notably, Section 38, Chapter 37, Book IV of the same Code defines the President’s
power of supervision and control over the executive departments, viz:
SECTION 38. Definition of Administrative Relationships. — Unless otherwise
expressly stated in the Code or in other laws defining the special relationships of
particular agencies, administrative relationships shall be categorized and defined as
follows:
(1) Supervision and Control. — Supervision and control shall include authority to
act directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts;
review, approve, reverse or modify acts and decisions of subordinate officials or
units; determine priorities in the execution of plans and programs. Unless a different
meaning is explicitly provided in the specific law governing the relationship of
particular agencies the word "control" shall encompass supervision and control as
defined in this paragraph. x x x (Emphasis and underscoring supplied)
Thus, whenever a specific function is entrusted by law or regulation to a subordinate, the
President may act directly or merely direct the performance of a duty. 34
Respecting the President’s authority to order the implementation of the Project in the
exercise of the police power of the State, suffice it to stress that the powers vested in the
DOTC Secretary to establish and administer comprehensive and integrated programs for
transportation and communications and to issue orders, rules and regulations to implement
such mandate (which, as previously discussed, may also be exercised by the President)
have been so delegated for the good and welfare of the people. Hence, these powers
partake of the nature of police power.
Police power is the plenary power vested in the legislature to make, ordain, and establish
wholesome and reasonable laws, statutes and ordinances, not repugnant to the
Constitution, for the good and welfare of the people. 35 This power to prescribe regulations to
promote the health, morals, education, good order or safety, and general welfare of the
people flows from the recognition that salus populi est suprema lex ─ the welfare of the
people is the supreme law.
While police power rests primarily with the legislature, such power may be delegated, as it
is in fact increasingly being delegated. 36 By virtue of a valid delegation, the power may be
exercised by the President and administrative boards 37 as well as by the lawmaking bodies
of municipal corporations or local governments under an express delegation by the Local
Government Code of 1991.38
The authority of the President to order the implementation of the Project notwithstanding,
the designation of the MMDA as the implementing agency for the Project may not be
sustained. It is ultra vires, there being no legal basis therefor.
It bears stressing that under the provisions of E.O. No. 125, as amended, it is the DOTC,
and not the MMDA, which is authorized to establish and implement a project such as the
one subject of the cases at bar. Thus, the President, although authorized to establish or
cause the implementation of the Project, must exercise the authority through the
instrumentality of the DOTC which, by law, is the primary implementing and administrative
entity in the promotion, development and regulation of networks of transportation, and the
one so authorized to establish and implement a project such as the Project in question.
By designating the MMDA as the implementing agency of the Project, the President clearly
overstepped the limits of the authority conferred by law, rendering E.O. No. 179 ultra vires.
In another vein, the validity of the designation of MMDA flies in the absence of a specific
grant of authority to it under R.A. No. 7924.
To recall, R.A. No. 7924 declared the Metropolitan Manila area 39 as a "special development
and administrative region" and placed the administration of "metro-wide" basic services
affecting the region under the MMDA.
Section 2 of R.A. No. 7924 specifically authorizes the MMDA to perform "planning,
monitoring and coordinative functions, and in the process exercise regulatory and
Josef Elvin Campos
supervisory authority over the delivery of metro-wide services," including transport and
traffic management.40 Section 5 of the same law enumerates the powers and functions of
the MMDA as follows:
(a) Formulate, coordinate and regulate the implementation of medium and
long-term plans and programs for the delivery of metro-wide services, land
use and physical development within Metropolitan Manila, consistent with
national development objectives and priorities;
(b) Prepare, coordinate and regulate the implementation of medium-term
investment programs for metro-wide services which shall indicate sources
and uses of funds for priority programs and projects, and which shall include
the packaging of projects and presentation to funding institutions;
(c) Undertake and manage on its own metro-wide programs and projects for
the delivery of specific services under its jurisdiction, subject to the approval
of the Council. For this purpose, MMDA can create appropriate project
management offices;
(d) Coordinate and monitor the implementation of such plans, programs and
projects in Metro Manila; identify bottlenecks and adopt solutions to problems
of implementation;
(e) The MMDA shall set the policies concerning traffic in Metro Manila,
and shall coordinate and regulate the implementation of all programs
and projects concerning traffic management, specifically pertaining to
enforcement, engineering and education . Upon request, it shall be
extended assistance and cooperation, including but not limited to, assignment
of personnel, by all other government agencies and offices concerned;
(f) Install and administer a single ticketing system, fix, impose and
collect fines and penalties for all kinds of violations of traffic rules and
regulations, whether moving or non-moving in nature, and confiscate and
suspend or revoke drivers’ licenses in the enforcement of such traffic laws
and regulations, the provisions of RA 4136 and PD 1605 to the contrary
notwithstanding. For this purpose, the Authority shall impose all traffic laws
and regulations in Metro Manila, through its traffic operation center, and may
deputize members of the PNP, traffic enforcers of local government units,
duly licensed security guards, or members of non-governmental organizations
to whom may be delegated certain authority, subject to such conditions and
requirements as the Authority may impose; and
(g) Perform other related functions required to achieve the objectives of the
MMDA, including the undertaking of delivery of basic services to the local
government units, when deemed necessary subject to prior coordination with
and consent of the local government unit concerned." (Emphasis and
The scope of the function of MMDA as an administrative, coordinating and policy-setting
body has been settled in Metropolitan Manila Development Authority (MMDA) v. Bel-Air
Village Association, Inc.41 In that case, the Court stressed:
Clearly, the scope of the MMDA’s function is limited to the delivery of the seven (7)
basic services. One of these is transport and traffic management which includes
the formulation and monitoring of policies, standards and projects to rationalize the
existing transport operations, infrastructure requirements, the use of thoroughfares
and promotion of the safe movement of persons and goods. It also covers the mass
transport system and the institution of a system of road regulation, the
administration of all traffic enforcement operations, traffic engineering services and
traffic education programs, including the institution of a single ticketing system in
Metro Manila for traffic violations. Under this service, the MMDA is expressly
authorized to "to set the policies concerning traffic" and "coordinate and regulate the
implementation of all traffic management programs." In addition, the MMDA may
install and administer a single ticketing system," fix, impose and collect fines and
penalties for all traffic violations.
It will be noted that the powers of the MMDA are limited to the following acts:
formulation, coordination, regulation, implementation, preparation, management,
monitoring, setting of policies, installation of a system and administration. There is no
syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative
power. Even the Metro Manila Council has not been delegated any legislative
power. Unlike the legislative bodies of the local government units, there is no
provision in R.A. No. 7924 that empowers the MMDA or its Council to ‘enact
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ordinances, approve resolutions and appropriate funds for the general welfare’
of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself,
a ‘development authority.’ It is an agency created for the purpose of laying
down policies and coordinating with the various national government
agencies, people’s organizations, non-governmental organizations and the
private sector for the efficient and expeditious delivery of basic services in the
vast metropolitan area. All its functions are administrative in nature and these
are actually summed up in the charter itself, viz:
‘SECTION 2. Creation of the Metropolitan Manila Development Authority. — . . .
The MMDA shall perform planning, monitoring and coordinative
functions, and in the process exercise regulatory and supervisory
authority over the delivery of metro-wide services within Metro Manila,
without diminution of the autonomy of the local government units concerning
purely local matters.’42 (Emphasis and underscoring supplied)
In light of the administrative nature of its powers and functions, the MMDA is devoid of
authority to implement the Project as envisioned by the E.O; hence, it could not have been
validly designated by the President to undertake the Project. It follows that the MMDA
cannot validly order the elimination of respondents’ terminals.
Even the MMDA’s claimed authority under the police power must necessarily fail in
consonance with the above-quoted ruling in MMDA v. Bel-Air Village Association, Inc. and
this Court’s subsequent ruling in Metropolitan Manila Development Authority v. Garin 43 that
the MMDA is not vested with police power.
Even assuming arguendo that police power was delegated to the MMDA, its exercise of
such power does not satisfy the two tests of a valid police power measure, viz: (1) the
interest of the public generally, as distinguished from that of a particular class, requires its
exercise; and (2) the means employed are reasonably necessary for the accomplishment of
the purpose and not unduly oppressive upon individuals. 44 Stated differently, the police
power legislation must be firmly grounded on public interest and welfare and a reasonable
relation must exist between the purposes and the means.
As early as Calalang v. Williams,45 this Court recognized that traffic congestion is a public,
not merely a private, concern. The Court therein held that public welfare underlies the
contested statute authorizing the Director of Public Works to promulgate rules and
regulations to regulate and control traffic on national roads.
Likewise, in Luque v. Villegas,46 this Court emphasized that public welfare lies at the bottom
of any regulatory measure designed "to relieve congestion of traffic, which is, to say the
least, a menace to public safety." 47 As such, measures calculated to promote the safety and
convenience of the people using the thoroughfares by the regulation of vehicular traffic
present a proper subject for the exercise of police power.
Notably, the parties herein concede that traffic congestion is a public concern that needs to
be addressed immediately. Indeed, the E.O. was issued due to the felt need to address the
worsening traffic congestion in Metro Manila which, the MMDA so determined, is caused by
the increasing volume of buses plying the major thoroughfares and the inefficient
connectivity of existing transport systems. It is thus beyond cavil that the motivating force
behind the issuance of the E.O. is the interest of the public in general.
Are the means employed appropriate and reasonably necessary for the accomplishment of
the purpose. Are they not duly oppressive?
With the avowed objective of decongesting traffic in Metro Manila, the E.O. seeks to
"eliminate[e] the bus terminals now located along major Metro Manila thoroughfares and
provid[e] more convenient access to the mass transport system to the commuting public
through the provision of mass transport terminal facilities x x x." 48 Common carriers with
terminals along the major thoroughfares of Metro Manila would thus be compelled to close
down their existing bus terminals and use the MMDA-designated common parking areas.
In Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc.,49 two city ordinances were
passed by the Sangguniang Panlungsod of Lucena, directing public utility vehicles to unload
and load passengers at the Lucena Grand Central Terminal, which was given the exclusive
franchise to operate a single common terminal. Declaring that no other terminals shall be
situated, constructed, maintained or established inside or within the city of Lucena,
the sanggunian declared as inoperable all temporary terminals therein.
The ordinances were challenged before this Court for being unconstitutional on the ground
that, inter alia, the measures constituted an invalid exercise of police power, an undue
taking of private property, and a violation of the constitutional prohibition against
monopolies.
Josef Elvin Campos
Citing De la Cruz v. Paras50 and Lupangco v. Court of Appeals,51 this Court held that the
assailed ordinances were characterized by overbreadth, as they went beyond what was
reasonably necessary to solve the traffic problem in the city. And it found that the
compulsory use of the Lucena Grand Terminal was unduly oppressive because it would
subject its users to fees, rentals and charges.
The true role of Constitutional Law is to effect an equilibrium between authority and
liberty so that rights are exercised within the framework of the law and the laws are
enacted with due deference to rights.
A due deference to the rights of the individual thus requires a more careful
formulation of solutions to societal problems.
From the memorandum filed before this Court by petitioner, it is gathered that the
Sangguniang Panlungsod had identified the cause of traffic congestion to be the
indiscriminate loading and unloading of passengers by buses on the streets of the
city proper, hence, the conclusion that the terminals contributed to the proliferation of
buses obstructing traffic on the city streets.
Bus terminals per se do not, however, impede or help impede the flow of
traffic. How the outright proscription against the existence of all terminals,
apart from that franchised to petitioner, can be considered as reasonably
necessary to solve the traffic problem, this Court has not been enlightened. If
terminals lack adequate space such that bus drivers are compelled to load and
unload passengers on the streets instead of inside the terminals, then reasonable
specifications for the size of terminals could be instituted, with permits to operate the
same denied those which are unable to meet the specifications.
In the subject ordinances, however, the scope of the proscription against the
maintenance of terminals is so broad that even entities which might be able to
provide facilities better than the franchised terminal are barred from operating
at all. (Emphasis and underscoring supplied)
As in Lucena, this Court fails to see how the prohibition against the existence of
respondents’ terminals can be considered a reasonable necessity to ease traffic congestion
in the metropolis. On the contrary, the elimination of respondents’ bus terminals brings forth
the distinct possibility and the equally harrowing reality of traffic congestion in the common
parking areas, a case of transference from one site to another.
Less intrusive measures such as curbing the proliferation of "colorum" buses, vans and
taxis entering Metro Manila and using the streets for parking and passenger pick-up points,
as respondents suggest, might even be more effective in easing the traffic situation. So
would the strict enforcement of traffic rules and the removal of obstructions from major
thoroughfares.
As to the alleged confiscatory character of the E.O., it need only to be stated that
respondents’ certificates of public convenience confer no property right, and are mere
licenses or privileges.52 As such, these must yield to legislation safeguarding the interest of
the people.
Even then, for reasons which bear reiteration, the MMDA cannot order the closure of
respondents’ terminals not only because no authority to implement the Project has been
granted nor legislative or police power been delegated to it, but also because the
elimination of the terminals does not satisfy the standards of a valid police power measure.
Finally, an order for the closure of respondents’ terminals is not in line with the provisions of
the Public Service Act.
Paragraph (a), Section 13 of Chapter II of the Public Service Act (now Section 5 of
Executive Order No. 202, creating the Land Transportation Franchising and Regulatory
Board or LFTRB) vested the Public Service Commission (PSC, now the LTFRB) with "x x x
jurisdiction, supervision and control over all public services and their franchises, equipment
and other properties x x x."
Consonant with such grant of authority, the PSC was empowered to "impose such
conditions as to construction, equipment, maintenance, service, or operation as the
public interests and convenience may reasonably require" 53 in approving any franchise or
privilege.
Further, Section 16 (g) and (h) of the Public Service Act 54 provided that the Commission
shall have the power, upon proper notice and hearing in accordance with the rules and
provisions of this Act, subject to the limitations and exceptions mentioned and saving
provisions to the contrary:
(g) To compel any public service to furnish safe, adequate, and proper service as
regards the manner of furnishing the same as well as the maintenance of the
necessary material and equipment.
Josef Elvin Campos
(h) To require any public service to establish, construct, maintain, and operate
any reasonable extension of its existing facilities, where in the judgment of said
Commission, such extension is reasonable and practicable and will furnish sufficient
business to justify the construction and maintenance of the same and when the
financial condition of the said public service reasonably warrants the original
expenditure required in making and operating such extension.(Emphasis and
The establishment, as well as the maintenance of vehicle parking areas or passenger
terminals, is generally considered a necessary service to be provided by provincial bus
operators like respondents, hence, the investments they have poured into the acquisition or
lease of suitable terminal sites. Eliminating the terminals would thus run counter to the
provisions of the Public Service Act.
This Court commiserates with the MMDA for the roadblocks thrown in the way of its efforts
at solving the pestering problem of traffic congestion in Metro Manila. These efforts are
commendable, to say the least, in the face of the abominable traffic situation of our roads
day in and day out. This Court can only interpret, not change, the law, however. It needs
only to be reiterated that it is the DOTC ─ as the primary policy, planning, programming,
coordinating, implementing, regulating and administrative entity to promote, develop and
regulate networks of transportation and communications ─ which has the power to
establish and administer a transportation project like the Project subject of the case
at bar.
No matter how noble the intentions of the MMDA may be then, any plan, strategy or project
which it is not authorized to implement cannot pass muster.
WHEREFORE, the Petition is, in light of the foregoing disquisition, DENIED. E.O. No. 179
is declared NULL and VOID for being ultra vires.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.
MMDA v. Garin (G.R. No. 130230, April 15, 2005)

G.R. No. 130230 April 15, 2005
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, Petitioner,
vs.
DANTE O. GARIN, respondent.
DECISION
CHICO-NAZARIO, J.:
At issue in this case is the validity of Section 5(f) of Republic Act No. 7924 creating the
Metropolitan Manila Development Authority (MMDA), which authorizes it to confiscate and
suspend or revoke driver's licenses in the enforcement of traffic laws and regulations.
The issue arose from an incident involving the respondent Dante O. Garin, a lawyer, who
was issued a traffic violation receipt (TVR) and his driver's license confiscated for parking
illegally along Gandara Street, Binondo, Manila, on 05 August 1995. The following
statements were printed on the TVR:
You are hereby directed to report to the MMDA Traffic Operations Center Port Area Manila
after 48 hours from date of apprehension for disposition/appropriate action thereon.
Criminal case shall be filed for failure to redeem license after 30 days.
Valid as temporary DRIVER'S license for seven days from date of apprehension. 1
Shortly before the expiration of the TVR's validity, the respondent addressed a letter 2 to then
MMDA Chairman Prospero Oreta requesting the return of his driver's license, and
expressing his preference for his case to be filed in court.
Receiving no immediate reply, Garin filed the original complaint 3 with application for
preliminary injunction in Branch 260 of the Regional Trial Court (RTC) of Parañaque, on 12
September 1995, contending that, in the absence of any implementing rules and
regulations, Sec. 5(f) of Rep. Act No. 7924 grants the MMDA unbridled discretion to deprive
erring motorists of their licenses, pre-empting a judicial determination of the validity of the
deprivation, thereby violating the due process clause of the Constitution. The respondent
further contended that the provision violates the constitutional prohibition against undue
delegation of legislative authority, allowing as it does the MMDA to fix and impose
unspecified – and therefore unlimited - fines and other penalties on erring motorists.
In support of his application for a writ of preliminary injunction, Garin alleged that he
suffered and continues to suffer great and irreparable damage because of the deprivation of
his license and that, absent any implementing rules from the Metro Manila Council, the TVR
and the confiscation of his license have no legal basis.
Josef Elvin Campos
For its part, the MMDA, represented by the Office of the Solicitor General, pointed out that
the powers granted to it by Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing, collection
and imposition of fines and penalties for traffic violations, which powers are legislative and
executive in nature; the judiciary retains the right to determine the validity of the penalty
imposed. It further argued that the doctrine of separation of powers does not preclude
"admixture" of the three powers of government in administrative agencies. 4
The MMDA also refuted Garin's allegation that the Metro Manila Council, the governing
board and policy making body of the petitioner, has as yet to formulate the implementing
rules for Sec. 5(f) of Rep. Act No. 7924 and directed the court's attention to MMDA
Memorandum Circular No. TT-95-001 dated 15 April 1995. Respondent Garin, however,
questioned the validity of MMDA Memorandum Circular No. TT-95-001, as he claims that it
was passed by the Metro Manila Council in the absence of a quorum.
Judge Helen Bautista-Ricafort issued a temporary restraining order on 26 September 1995,
extending the validity of the TVR as a temporary driver's license for twenty more days. A
preliminary mandatory injunction was granted on 23 October 1995, and the MMDA was
directed to return the respondent's driver's license.
On 14 August 1997, the trial court rendered the assailed decision 5 in favor of the herein
respondent and held that:
a. There was indeed no quorum in that First Regular Meeting of the MMDA Council
held on March 23, 1995, hence MMDA Memorandum Circular No. TT-95-001, authorizing
confiscation of driver's licenses upon issuance of a TVR, is void ab initio.
b. The summary confiscation of a driver's license without first giving the driver an
opportunity to be heard; depriving him of a property right (driver's license) without DUE
PROCESS; not filling (sic) in Court the complaint of supposed traffic infraction, cannot be
justified by any legislation (and is) hence unconstitutional.
WHEREFORE, the temporary writ of preliminary injunction is hereby made permanent; th(e)
MMDA is directed to return to plaintiff his driver's license; th(e) MMDA is likewise ordered to
desist from confiscating driver's license without first giving the driver the opportunity to be
heard in an appropriate proceeding.
In filing this petition,6 the MMDA reiterates and reinforces its argument in the court below
and contends that a license to operate a motor vehicle is neither a contract nor a property
right, but is a privilege subject to reasonable regulation under the police power in the
interest of the public safety and welfare. The petitioner further argues that revocation or
suspension of this privilege does not constitute a taking without due process as long as the
licensee is given the right to appeal the revocation.
To buttress its argument that a licensee may indeed appeal the taking and the judiciary
retains the power to determine the validity of the confiscation, suspension or revocation of
the license, the petitioner points out that under the terms of the confiscation, the licensee
has three options:
1. To voluntarily pay the imposable fine,
2. To protest the apprehension by filing a protest with the MMDA Adjudication
Committee, or
3. To request the referral of the TVR to the Public Prosecutor's Office.
The MMDA likewise argues that Memorandum Circular No. TT-95-001 was validly passed
in the presence of a quorum, and that the lower court's finding that it had not was based on
a "misapprehension of facts," which the petitioner would have us review. Moreover, it
asserts that though the circular is the basis for the issuance of TVRs, the basis for the
summary confiscation of licenses is Sec. 5(f) of Rep. Act No. 7924 itself, and that such
power is self-executory and does not require the issuance of any implementing regulation or
circular.
Meanwhile, on 12 August 2004, the MMDA, through its Chairman Bayani Fernando,
implemented Memorandum Circular No. 04, Series of 2004, outlining the procedures for the
use of the Metropolitan Traffic Ticket (MTT) scheme. Under the circular, erring motorists
are issued an MTT, which can be paid at any Metrobank branch. Traffic enforcers may no
longer confiscate drivers' licenses as a matter of course in cases of traffic violations. All
motorists with unredeemed TVRs were given seven days from the date of implementation of
the new system to pay their fines and redeem their license or vehicle plates. 7
It would seem, therefore, that insofar as the absence of a prima facie case to enjoin the
petitioner from confiscating drivers' licenses is concerned, recent events have overtaken the
Court's need to decide this case, which has been rendered moot and academic by the
implementation of Memorandum Circular No. 04, Series of 2004.
The petitioner, however, is not precluded from re-implementing Memorandum Circular No.
TT-95-001, or any other scheme, for that matter, that would entail confiscating drivers'
Josef Elvin Campos
licenses. For the proper implementation, therefore, of the petitioner's future programs, this
Court deems it appropriate to make the following observations:
1. A license to operate a motor vehicle is a privilege that the state may withhold
in the exercise of its police power.
The petitioner correctly points out that a license to operate a motor vehicle is not a property
right, but a privilege granted by the state, which may be suspended or revoked by the state
in the exercise of its police power, in the interest of the public safety and welfare, subject to
the procedural due process requirements. This is consistent with our rulings in Pedro v.
Provincial Board of Rizal8 on the license to operate a cockpit, Tan v. Director of
Forestry9 and Oposa v. Factoran10 on timber licensing agreements, and Surigao Electric
Co., Inc. v. Municipality of Surigao11 on a legislative franchise to operate an electric plant.
Petitioner cites a long list of American cases to prove this point, such as State ex. Rel.
Sullivan,12 which states in part that, "the legislative power to regulate travel over the
highways and thoroughfares of the state for the general welfare is extensive. It may be
exercised in any reasonable manner to conserve the safety of travelers and pedestrians.
Since motor vehicles are instruments of potential danger, their registration and the licensing
of their operators have been required almost from their first appearance. The right to
operate them in public places is not a natural and unrestrained right, but a privilege subject
to reasonable regulation, under the police power, in the interest of the public safety and
welfare. The power to license imports further power to withhold or to revoke such license
upon noncompliance with prescribed conditions."
Likewise, the petitioner quotes the Pennsylvania Supreme Court in Commonwealth v.
Funk,13 to the effect that: "Automobiles are vehicles of great speed and power. The use of
them constitutes an element of danger to persons and property upon the highways.
Carefully operated, an automobile is still a dangerous instrumentality, but, when operated
by careless or incompetent persons, it becomes an engine of destruction. The Legislature,
in the exercise of the police power of the commonwealth, not only may, but must, prescribe
how and by whom motor vehicles shall be operated on the highways. One of the primary
purposes of a system of general regulation of the subject matter, as here by the Vehicle
Code, is to insure the competency of the operator of motor vehicles. Such a general law is
manifestly directed to the promotion of public safety and is well within the police power."
The common thread running through the cited cases is that it is the legislature, in the
exercise of police power, which has the power and responsibility to regulate how and by
whom motor vehicles may be operated on the state highways.
2. The MMDA is not vested with police power.
In Metro Manila Development Authority v. Bel-Air Village Association, Inc.,14 we categorically
stated that Rep. Act No. 7924 does not grant the MMDA with police power, let alone
legislative power, and that all its functions are administrative in nature.
The said case also involved the herein petitioner MMDA which claimed that it had the
authority to open a subdivision street owned by the Bel-Air Village Association, Inc. to public
traffic because it is an agent of the state endowed with police power in the delivery of basic
services in Metro Manila. From this premise, the MMDA argued that there was no need for
the City of Makati to enact an ordinance opening Neptune Street to the public.
Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we concluded that
the MMDA is not a local government unit or a public corporation endowed with legislative
power, and, unlike its predecessor, the Metro Manila Commission, it has no power to enact
ordinances for the welfare of the community. Thus, in the absence of an ordinance from the
City of Makati, its own order to open the street was invalid.
We restate here the doctrine in the said decision as it applies to the case at bar: police
power, as an inherent attribute of sovereignty, is the power vested by the Constitution in the
legislature to make, ordain, and establish all manner of wholesome and reasonable laws,
statutes and ordinances, either with penalties or without, not repugnant to the Constitution,
as they shall judge to be for the good and welfare of the commonwealth, and for the
subjects of the same.
Having been lodged primarily in the National Legislature, it cannot be exercised by any
group or body of individuals not possessing legislative power. The National Legislature,
however, may delegate this power to the president and administrative boards as well as the
lawmaking bodies of municipal corporations or local government units (LGUs). Once
delegated, the agents can exercise only such legislative powers as are conferred on them
by the national lawmaking body.
Our Congress delegated police power to the LGUs in the Local Government Code of
1991.15 A local government is a "political subdivision of a nation or state which is constituted
by law and has substantial control of local affairs." 16 Local government units are the
Josef Elvin Campos
provinces, cities, municipalities and barangays, which exercise police power through their
respective legislative bodies.
Metropolitan or Metro Manila is a body composed of several local government units. With
the passage of Rep. Act No. 7924 in 1995, Metropolitan Manila was declared as a "special
development and administrative region" and the administration of "metro-wide" basic
services affecting the region placed under "a development authority" referred to as the
MMDA. Thus:
. . . [T]he powers of the MMDA are limited to the following acts: formulation, coordination,
regulation, implementation, preparation, management, monitoring, setting of policies,
installation of a system and administration. There is no syllable in R. A. No. 7924 that
grants the MMDA police power, let alone legislative power. Even the Metro Manila
Council has not been delegated any legislative power. Unlike the legislative bodies of
the local government units, there is no provision in R. A. No. 7924 that empowers the
MMDA or its Council to "enact ordinances, approve resolutions and appropriate
funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as
termed in the charter itself, a "development authority." It is an agency created for the
purpose of laying down policies and coordinating with the various national
government agencies, people's organizations, non-governmental organizations and
the private sector for the efficient and expeditious delivery of basic services in the
vast metropolitan area. All its functions are administrative in nature and these are
actually summed up in the charter itself, viz:
"Sec. 2. Creation of the Metropolitan Manila Development Authority. -- -x x x.
The MMDA shall perform planning, monitoring and coordinative functions,
and in the process exercise regulatory and supervisory authority over the
delivery of metro-wide services within Metro Manila, without diminution of the
autonomy of the local government units concerning purely local matters."
….
Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA
is that given to the Metro Manila Council to promulgate administrative rules and regulations
in the implementation of the MMDA's functions. There is no grant of authority to enact
ordinances and regulations for the general welfare of the inhabitants of the
metropolis. 17 (footnotes omitted, emphasis supplied)
Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by
the petitioner to grant the MMDA the power to confiscate and suspend or revoke drivers'
licenses without need of any other legislative enactment, such is an unauthorized exercise
of police power.
3. Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and
regulations.
Section 5 of Rep. Act No. 7924 enumerates the "Functions and Powers of the Metro Manila
Development Authority." The contested clause in Sec. 5(f) states that the petitioner shall
"install and administer a single ticketing system, fix, impose and collect fines and penalties
for all kinds of violations of traffic rules and regulations, whether moving or nonmoving in
nature, and confiscate and suspend or revoke drivers' licenses in the enforcement of such
traffic laws and regulations, the provisions of Rep. Act No. 4136 18 and P.D. No. 160519 to the
contrary notwithstanding," and that "(f)or this purpose, the Authority shall enforce all traffic
laws and regulations in Metro Manila, through its traffic operation center, and may deputize
members of the PNP, traffic enforcers of local government units, duly licensed security
guards, or members of non-governmental organizations to whom may be delegated certain
authority, subject to such conditions and requirements as the Authority may impose."
Thus, where there is a traffic law or regulation validly enacted by the legislature or those
agencies to whom legislative powers have been delegated (the City of Manila in this case),
the petitioner is not precluded – and in fact is duty-bound – to confiscate and suspend or
revoke drivers' licenses in the exercise of its mandate of transport and traffic management,
as well as the administration and implementation of all traffic enforcement operations, traffic
engineering services and traffic education programs. 20
This is consistent with our ruling in Bel-Air that the MMDA is a development authority
created for the purpose of laying down policies and coordinating with the various national
government agencies, people's organizations, non-governmental organizations and the
private sector, which may enforce, but not enact, ordinances.
This is also consistent with the fundamental rule of statutory construction that a statute is to
be read in a manner that would breathe life into it, rather than defeat it, 21 and is supported
by the criteria in cases of this nature that all reasonable doubts should be resolved in favor
of the constitutionality of a statute. 22
Josef Elvin Campos
A last word. The MMDA was intended to coordinate services with metro-wide impact that
transcend local political boundaries or would entail huge expenditures if provided by the
individual LGUs, especially with regard to transport and traffic management, 23 and we are
aware of the valiant efforts of the petitioner to untangle the increasingly traffic-snarled roads
of Metro Manila. But these laudable intentions are limited by the MMDA's enabling law,
which we can but interpret, and petitioner must be reminded that its efforts in this respect
must be authorized by a valid law, or ordinance, or regulation arising from a legitimate
source.
WHEREFORE, the petition is dismissed.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
Province of Rizal v. Executive Secretary (G.R. No. 129546, 13 December

2005)
G.R. No. 129546 December 13, 2005
PROVINCE OF RIZAL, MUNICIPALITY OF SAN MATEO, PINTONG BOCAUE
MULTIPURPOSE COOPERATIVE, CONCERNED CITIZENS OF RIZAL, INC., ROLANDO
E. VILLACORTE, BERNARDO HIDALGO, ANANIAS EBUENGA, VILMA T. MONTAJES,
FEDERICO MUNAR, JR., ROLANDO BEÑAS, SR., ET AL., and KILOSBAYAN,
INC., Petitioners,
vs.
EXECUTIVE SECRETARY, SECRETARY OF ENVIRONMENT & NATURAL
RESOURCES, LAGUNA LAKE DEVELOPMENT AUTHORITY, SECRETARY OF PUBLIC
WORKS & HIGHWAYS, SECRETARY OF BUDGET & MANAGEMENT, METRO MANILA
DEVELOPMENT AUTHORITY and THE HONORABLE COURT OF
APPEALS, Respondents.
DECISION
CHICO-NAZARIO, J.:
The earth belongs in usufruct to the living. 1
At the height of the garbage crisis plaguing Metro Manila and its environs, parts of the
Marikina Watershed Reservation were set aside by the Office of the President, through
Proclamation No. 635 dated 28 August 1995, for use as a sanitary landfill and similar waste
disposal applications. In fact, this site, extending to more or less 18 hectares, had already
been in operation since 19 February 1990 2 for the solid wastes of Quezon City, Marikina,
San Juan, Mandaluyong, Pateros, Pasig, and Taguig. 3
This is a petition filed by the Province of Rizal, the municipality of San Mateo, and various
concerned citizens for review on certiorari of the Decision of the Court of Appeals in CA-
G.R. SP No. 41330, denying, for lack of cause of action, the petition for certiorari,
prohibition and mandamus with application for a temporary restraining order/writ of
preliminary injunction assailing the legality and constitutionality of Proclamation No. 635.
The facts are documented in painstaking detail.
On 17 November 1988, the respondent Secretaries of the Department of Public Works and
Highways (DPWH) and the Department of Environment and Natural Resources (DENR) and
the Governor of the Metropolitan Manila Commission (MMC) entered into a Memorandum of
Agreement (MOA),4 which provides in part:
1. The DENR agrees to immediately allow the utilization by the Metropolitan Manila
Commission of its land property located at Pintong Bocaue in San Mateo, Rizal as a
sanitary landfill site, subject to whatever restrictions that the government impact
assessment might require.
2. Upon signing of this Agreement, the DPWH shall commence the
construction/development of said dumpsite.
3. The MMC shall: a) take charge of the relocation of the families within and around the site;
b) oversee the development of the areas as a sanitary landfill; c) coordinate/monitor the
construction of infrastructure facilities by the DPWH in the said site; and d) ensure that the
necessary civil works are properly undertaken to safeguard against any negative
environmental impact in the area.
On 7, 8 and 10 February 1989, the Sangguniang Bayan of San Mateo wrote Gov. Elfren
Cruz of the MMC, Sec. Fiorello Estuar of the DPWH, the Presidential Task Force on Solid
Waste Management, Executive Secretary Catalino Macaraig, and Sec. Fulgencio Factoran,
Jr., pointing out that it had recently passed a Resolution banning the creation of dumpsites
for Metro Manila garbage within its jurisdiction, asking that their side be heard, and that the
Josef Elvin Campos
addressees "suspend and temporarily hold in abeyance all and any part of your operations
with respect to the San Mateo Landfill Dumpsite." No action was taken on these letters.
It turns out that the land subject of the MOA of 17 November 1988 and owned by the DENR
was part of the Marikina Watershed Reservation Area. Thus, on 31 May 1989, forest
officers of the Forest Engineering and Infrastructure Unit of the Community Environment
and Natural Resource Office, (CENRO) DENR-IV, Rizal Province, submitted a
Memorandum5 on the "On-going Dumping Site Operation of the MMC inside (the) Upper
Portion of Marikina Watershed Reservation, located at Barangay Pintong Bocaue, San
Mateo, Rizal, and nearby localities." Said Memorandum reads in part:
Observations:
3.1 The subject area is arable and agricultural in nature;
3.2 Soil type and its topography are favorable for agricultural and forestry productions;
...
3.5 Said Dumping Site is observed to be confined within the said Watershed
Reservation, bearing in the northeastern part of Lungsod Silangan Townsite
Reservation. Such illegal Dumping Site operation inside (the) Watershed Reservation
is in violation of P.D. 705, otherwise known as the Revised Forestry Code, as
amended. . .
Recommendations:
5.1 The MMC Dumping Site Inside Marikina Watershed Reservation, particularly at Brgy.
Pintong Bocaue, San Mateo, Rizal and at Bo. Pinugay, Baras/Antipolo, Rizal which are the
present garbage zones must totally be stopped and discouraged without any political
intervention and delay in order to save our healthy ecosystems found therein, to
avoid much destruction, useless efforts and lost (sic) of millions of public funds over
the land in question; (Emphasis ours)
On 19 June 1989, the CENRO submitted another Investigation Report 6 to the Regional
Executive Director which states in part that:
1. About two (2) hectares had been excavated by bulldozers and garbage dumping
operations are going on.
2. The dumping site is without the concurrence of the Provincial Governor, Rizal Province
and without any permit from DENR who has functional jurisdiction over the Watershed
Reservation; and
3. About 1,192 families residing and cultivating areas covered by four (4) Barangays
surrounding the dumping site will adversely be affected by the dumping operations of MMC
including their sources of domestic water supply. x x x x
On 22 January 1990, the CENRO submitted still another Investigation Report 7 to the
Regional Executive Director which states that:
Findings show that the areas used as Dumping Site of the MMC are found to be within the
Marikina Watershed which are part of the Integrated Social Forestry Project (ISF) as per
recorded inventory of Forest Occupancy of this office.
It also appears that as per record, there was no permit issued to the MMC to utilize these
portions of land for dumping purposes.
It is further observed that the use of the areas as dumping site greatly affects the ecological
balance and environmental factors in this community.
On 19 February 1990, the DENR Environmental Management Bureau, through
Undersecretary for Environment and Research Celso R. Roque, granted the Metro Manila
Authority (MMA [formerly MMC]) an Environmental Compliance Certificate (ECC) for the
operation of a two-and-a-half-hectare garbage dumpsite.
The ECC was sought and granted to comply with the requirement of Presidential Decree
No. 1586 "Establishing an Environmental Impact Statement System," Section 4 of which
states in part that, "No persons, partnership or corporation shall undertake or operate any
such declared environmentally critical project or area without first securing an
Environmental Compliance Certificate." Proclamation No. 2146, passed on 14 December
1981, designates "all areas declared by law as national parks, watershed reserves, wildlife
preserves, and sanctuaries" as "Environmentally Critical Areas."
On 09 March 1990, respondent Laguna Lake Development Authority (LLDA), through its
Acting General Manager, sent a letter 8 to the MMA, which reads in part:
Through this letter we would like to convey our reservation on the choice of the sites for
solid waste disposal inside the watershed of Laguna Lake. As you may already know, the
Metropolitan Waterworks and Sewerage System (MWSS) has scheduled the
abstraction of water from the lake to serve the needs of about 1.2 million residents of
Muntinlupa, Paranaque, Las Pinas and Bacoor, Cavite by 1992. Accordingly, the
Laguna Lake Development Authority (LLDA) is accelerating its environmental
Josef Elvin Campos
management program to upgrade the water quality of the lake in order to make it
suitable as a source of domestic water supply the whole year round. The said program
regards dumpsites as incompatible within the watershed because of the heavy
pollution, including the risk of diseases, generated by such activities which would
negate the government’s efforts to upgrade the water quality of the
lake. Consequently, please consider our objection to the proposed location of the
dumpsites within the watershed. (Emphasis supplied by petitioners)
On 31 July 1990, less than six months after the issuance of the ECC, Undersecretary
Roque suspended the ECC in a letter 9 addressed to the respondent Secretary of DPWH,
stating in part that:
Upon site investigation conducted by Environmental Management Bureau staff on
development activities at the San Mateo Landfill Site, it was ascertained that ground
slumping and erosion have resulted from improper development of the site. We
believe that this will adversely affect the environmental quality in the area if the proper
remedial measures are not instituted in the design of the landfill site. This is therefore
contradictory to statements made in the Environmental Impact Statement (EIS) submitted
that above occurrences will be properly mitigated.
In view of this, we are forced to suspend the Environmental Compliance Certificate (ECC)
issued until appropriate modified plans are submitted and approved by this Office for
implementation. (Emphasis ours)
On 21 June 1993, the Acting Mayor of San Mateo, Enrique Rodriguez, Jr., Barangay
Captain Dominador Vergara, and petitioner Rolando E. Villacorte, Chairman of the Pintong
Bocaue Multipurpose Cooperative (PBMC) wrote 10 then President Fidel V. Ramos
expressing their objections to the continued operation of the MMA dumpsite for causing
"unabated pollution and degradation of the Marikina Watershed Reservation."
On 14 July 1993, another Investigation Report 11 submitted by the Regional Technical
Director to the DENR Undersecretary for Environment and Research contained the
following findings and recommendations:
Remarks and Findings:
....
5. Interview with Mr. Dayrit, whose lot is now being endangered because soil erosion have
(sic) caused severe siltation and sedimentation of the Dayrit Creek which water is greatly
polluted by the dumping of soil bulldozed to the creek;
6. Also interview with Mrs. Vilma Montajes, the multi-grade teacher of Pintong Bocaue
Primary School which is located only about 100 meters from the landfill site. She disclosed
that bad odor have (sic) greatly affected the pupils who are sometimes sick with respiratory
illnesses. These odors show that MMA have (sic) not instituted/sprayed any disinfectant
chemicals to prevent air pollution in the area. Besides large flies (Bangaw) are swarming all
over the playground of the school. The teacher also informed the undersigned that plastic
debris are being blown whenever the wind blows in their direction.
7. As per investigation report … there are now 15 hectares being used as landfill disposal
sites by the MMA. The MMA is intending to expand its operation within the 50 hectares.
8. Lots occupied within 50 hectares are fully planted with fruit bearing trees like Mangoes,
Santol, Jackfruit, Kasoy, Guyabano, Kalamansi and Citrus which are now bearing fruits and
being harvested and marketed to nearby San Mateo Market and Masinag Market in
Antipolo.
....
Recommendations:
1. As previously recommended, the undersigned also strongly recommend(s) that the MMA
be made to relocate the landfill site because the area is within the Marikina Watershed
Reservation and Lungsod Silangan. The leachate treatment plant ha(s) been eroded twice
already and contaminated the nearby creeks which is the source of potable water of the
residents. The contaminated water also flows to Wawa Dam and Boso-boso River which
also flows to Laguna de Bay.
2. The proposed Integrated Social Forestry Project be pushed through or be approved. ISF
project will not only uplift the socio-economic conditions of the participants but will enhance
the rehabilitation of the Watershed considering that fruit bearing trees are vigorously
growing in the area. Some timber producing species are also planted like Mahogany and
Gmelina Arboiea. There are also portions where dipterocarp residuals abound in the area.
3. The sanitary landfill should be relocated to some other area, in order to avoid any conflict
with the local government of San Mateo and the nearby affected residents who have been
in the area for almost 10-20 years.
Josef Elvin Campos
On 16 November 1993, DENR Secretary Angel C. Alcala sent MMA Chairman Ismael A.
Mathay, Jr. a letter12 stating that "after a series of investigations by field officials" of the
DENR, the agency realized that the MOA entered into on 17 November 1988 "is a very
costly error because the area agreed to be a garbage dumpsite is inside the Marikina
Watershed Reservation." He then strongly recommended that all facilities and infrastructure
in the garbage dumpsite in Pintong Bocaue be dismantled, and the garbage disposal
operations be transferred to another area outside the Marikina Watershed Reservation to
protect "the health and general welfare of the residents of San Mateo in particular and the
residents of Metro Manila in general."
On 06 June 1995, petitioner Villacorte, Chairman of the PBMC, wrote 13 President Ramos,
through the Executive Secretary, informing the President of the issues involved, that the
dumpsite is located near three public elementary schools, the closest of which is only fifty
meters away, and that its location "violates the municipal zoning ordinance of San Mateo
and, in truth, the Housing and Land Use Regulatory Board had denied the then MMA
chairman’s application for a locational clearance on this ground."
On 21 August 1995, the Sangguniang Bayan of San Mateo issued a
Resolution14 "expressing a strong objection to the planned expansion of the landfill operation
in Pintong Bocaue and requesting President Ramos to disapprove the draft Presidential
Proclamation segregating 71.6 Hectares from Marikina Watershed Reservation for the
landfill site in Pintong Bocaue, San Mateo, Rizal."
Despite the various objections and recommendations raised by the government agencies
aforementioned, the Office of the President, through Executive Secretary Ruben Torres,
signed and issued Proclamation No. 635 on 28 August 1995, "Excluding from the Marikina
Watershed Reservation Certain Parcels of Land Embraced Therein for Use as Sanitary
Landfill Sites and Similar Waste Disposal Under the Administration of the Metropolitan
Manila Development Authority." The pertinent portions thereof state:
WHEREAS, to cope with the requirements of the growing population in Metro Manila and
the adjoining provinces and municipalities, certain developed and open portions of the
Marikina Watershed Reservation, upon the recommendation of the Secretary of the
Department of Environment and Natural Resources should now be excluded form the scope
of the reservation;
WHEREAS, while the areas delineated as part of the Watershed Reservations are intended
primarily for use in projects and/or activities designed to contain and preserve the
underground water supply, other peripheral areas had been included within the scope of the
reservation to provide for such space as may be needed for the construction of the
necessary structures, other related facilities, as well as other priority projects of government
as may be eventually determined;
WHEREAS, there is now an urgent need to provide for, and develop, the necessary
facilities for the disposal of the waste generated by the population of Metro Manila and the
adjoining provinces and municipalities, to ensure their sanitary and /or hygienic disposal;
WHEREAS, to cope with the requirements for the development of the waste disposal
facilities that may be used, portions of the peripheral areas of the Marikina Watershed
Reservation, after due consideration and study, have now been identified as suitable sites
that may be used for the purpose;
WHEREAS, the Secretary of the Department of Environment and Natural Resources has
recommended the exclusion of these areas that have been so identified from the Marikina
Watershed Reservation so that they may then be developed for the purpose;
NOW, THEREFORE, for and in consideration of the aforecited premises, I, Fidel V. Ramos,
President of the Philippines, by virtue of the powers vested in me by law, do hereby ordain:
Section 1. General – That certain parcels of land, embraced by the Marikina Watershed
Reservation, were found needed for use in the solid waste disposal program of the
government in Metropolitan Manila, are hereby excluded from that which is held in reserve
and are now made available for use as sanitary landfill and such other related waste
disposal applications.
Section 2. Purpose – The areas being excluded from the Marikina Watershed Reservation
are hereby placed under the administration of the Metropolitan Manila Development
Authority, for development as Sanitary Landfill, and/or for use in the development of such
other related waste disposal facilities that may be used by the cities and municipalities of
Metro Manila and the adjoining province of Rizal and its municipalities.
Section 3. Technical Description – Specifically, the areas being hereby excluded from the
Marikina Watershed Reservation consist of two (2) parcels, with an aggregate area of
approximately ONE MILLION SIXTY THOUSAND FIVE HUNDRED TWENTY NINE
(1,060,529) square meters more or less, as follows: x x x x
Josef Elvin Campos
Section 4. Reservations – The development, construction, use and/or operation of any
facility that may be established within the parcel of land herein excluded from the Marikina
Watershed Reservation shall be governed by existing laws, rules and regulations pertaining
to environmental control and management. When no longer needed for sanitary landfill
purposes or the related waste disposal activities, the parcels of land subject of this
proclamation shall revert back as part of the Marikina Watershed Reservation, unless
otherwise authorized.
On 06 September 1995, Director Wilfrido S. Pollisco of the Protected Areas and Wildlife
Bureau wrote the DENR Secretary to express the bureau’s stand against the dumpsite at
Pintong Bocaue, and that "it is our view . . . that the mere presence of a garbage dumpsite
inside a watershed reservation is definitely not compatible with the very purpose and
objectives for which the reservation was established."
On 24 November 1995, the petitioners Municipality of San Mateo and the residents of
Pintong Bocaue, represented by former Senator Jovito Salonga, sent a letter to President
Ramos requesting him to reconsider Proclamation No. 635. Receiving no reply, they sent
another letter on 02 January 1996 reiterating their previous request.
On 04 March 1996, then chairman of the Metro Manila Development Authority (MMDA
[formerly MMA]) Prospero I. Oreta addressed a letter to Senator Salonga, stating in part
that:
….
2. Considering the circumstances under which we are pursuing the project, we are certain
you will agree that, unless we are prepared with a better alternative, the project simply has
to be pursued in the best interest of the greater majority of the population, particularly their
health and welfare."
2.1 The San Mateo Sanitary Landfill services, at least, 38% of the waste disposal site
requirements of Metro Manila where an estimated 9 million population reside.
2.2 Metro Manila is presently estimated to be generating, at least, 15,700 cubic meters of
household or municipal waste, a 1.57 hectare of land area will be filled in a month’s time
with a pile 31 meters high of garbage, or in a year, the accumulated volume will require 18.2
hectares.
....
4. The sanitary landfill projects are now on their fifth year of implementation. The amount of
effort and money already invested in the project by the government cannot easily be
disregarded, much more set aside in favor of the few settlers/squatters who chose to ignore
the earlier notice given to them that the area would be used precisely for the development
of waste disposal sites, and are now attempting to arouse opposition to the project.
4.2 There is no place within the jurisdiction of Metro Manila, with an area big enough to
accommodate at least 3 to 5 years of waste disposal requirements. x x x x
4.21 The present site at San Mateo was selected because, at the time consideration was
being made, and up to the present, it is found to have the attributes that positively respond
to the criteria established:
4.21.1 The site was a government property and would not require any outlay for it to be
acquired.
4.21.2 It is far from any sizeable community/settlements that could be affected by the
development that would be introduced and yet, was within economic hauling distance from
the areas they are designed to serve.
4.21.21 At the time it was originally decided to locate the landfills at the present site, there
were not more that fifteen (15) settlers in the area and they had hardly established
themselves. The community settlements were located far from the site.
4.21.22 The area was hardly accessible, especially to any public transport. The area was
being served by a public utility jeep that usually made only two (2) trips daily. During the
rainy season, it could only be reached by equipping the vehicle with tire chains to traverse
the slippery muddy trail roads.
4.21.3 There was, at least, seventy-three (73) hectares available at the site.
4.3 While the site was within the Marikina Watershed Reservation under the administration
of the DENR, the site was located at the lower periphery of the buffer zone; was evaluated
to be least likely to affect the underground water supply; and could, in fact, be excluded
from the reservation.
4.31 It was determined to be far from the main water containment area for it to pose any
immediate danger of contaminating the underground water, in case of a failure in any of the
mitigating measures that would be installed.
Josef Elvin Campos
4.32 It was likewise too far from the nearest body of water, the Laguna Lake, and the
distance, plus the increasing accumulation of water from other tributaries toward the lake,
would serve to dilute and mitigate any contamination it may emit, in case one happened.
4.33 To resolve the recurring issue regarding its being located within the Marikina
Watershed Reservation, the site had been recommended by the DENR, and approved by
the President, to already be excluded from the Marikina Watershed reservation and placed
under the administration of MMDA, since the site was deemed to form part of the land
resource reserve then commonly referred to as buffer zone.
5. Contrary to the impression that you had been given, relocating the site at this point and
time would not be easy, if not impracticable, because aside from the investments that had
been made in locating the present site, further investments have been incurred in:
5.1 The conduct of the technical studies for the development being implemented. Through a
grant-in-aid from the World Bank, US$600,000 was initially spent for the conduct of the
necessary studies on the area and the design of the landfill. This was augmented by, at
least, another P1.5 million from the government for the studies to be completed, or a total
cost at the time (1990) of approximately P20 million.
5.2. Additionally, the government has spent approximately P33 million in improving on the
roadway to make the site accessible from the main road/highway.
5.3 To achieve the necessary economies in the development of the site, the utilities had
been planned so that their use could be maximized. These include the access roads, the
drainage system, the leacheate collection system, the gas collection system, and the waste
water treatment system. Their construction are designed so that instead of having to
construct independent units for each area, the use of existing facilities can be maximized
through a system of interconnection. On the average, the government is spending P14.8
million to develop a hectare of sanitary landfill area.
6. Despite the preparations and the investments that are now being made on the project, it
is estimated that the total available area, at an accelerated rate of disposal, assuming that
all open dump sites were to be closed, will only last for 39 months.
6.1 We are still hard pressed to achieve advanced development on the sites to assure
against any possible crisis in garbage from again being experienced in Metro Manila, aside
from having to look for the additional sites that may be used after the capacities shall have
been exhausted.
6.2 Faced with the prospects of having the 15,700 cubic meters of garbage generated daily
strewn all over Metro Manila, we are certain you will agree that it would be futile to even as
much as consider a suspension of the waste disposal operations at the sanitary landfills.
On 22 July 1996, the petitioners filed before the Court of Appeals a civil action for certiorari,
prohibition and mandamus with application for a temporary restraining order/writ of
preliminary injunction. The hearing on the prayer for preliminary injunction was held on 14
August 1996.
On 13 June 1997, the court a quo rendered a Decision,15 the dispositive part of which reads:
WHEREFORE, the petition for certiorari, prohibition and mandamus with application for a
temporary restraining order/writ of preliminary injunction for lack of cause of action, is
hereby DENIED.16
Hence, this petition for review on certiorari of the above decision on the following grounds:
I
The Court of Appeals erred and abused its discretion in deliberately ignoring the significant
fact that Presidential Proclamation No. 635 was based on a brazen forgery – it was
supposedly issued, as stated in the proclamation itself and repeatedly asserted by
respondents in their comment, on the basis of the alleged recommendation of the DENR
Secretary dated June 26, 1995 but which assertion was denounced by the then Secretary
Angel C. Alcala himself – in a sworn statement dated September 18, 1996 and again during
the special hearing of the case in the Court of Appeals on November 13, 1996 – as a
forgery since his signature on the alleged recommendation had been falsified, as now
admitted by respondents themselves in their comment filed with the Court of Appeals,
through the Office of the Solicitor General.
II
The Court of Appeals erred and abused its discretion in completely ignoring the significant
fact that the respondents are operating the landfill based on a spurious Environmental
Compliance Certificate.
III
The Court of Appeals erred in ruling that the respondents did not violate R.A. 7586 when
they issued and implemented Proclamation No. 635 considering that the withdrawal or
Josef Elvin Campos
disestablishment of a protected area or the modification of the Marikina Watershed can only
be done by an act of Congress.
IV
The Court of Appeals erred and abused its discretion when it deliberately and willfully
brushed aside the unanimous findings and adverse recommendations of responsible
government agencies and non-partisan officials concerned with environmental protection in
favor of the self-serving, gratuitous assertions found in the unsolicited, partisan letter of
former Malabon Mayor, now Chairman Prospero Oreta of the MMDA who is an interested
party in this case.
V
The Court of Appeals erred when it readily swallowed respondents’ assertion that the San
Mateo Dumpsite "is located in the ‘Buffer Zone’ of the reservation" and is therefore outside
of its boundaries, and even declared in its decision that it took "serious note" of this
particular argument.
VI
The Court of Appeals erred and abused its discretion when it encroached on the function of
Congress by expressing its unjustified fear of mini-smokey mountains proliferating in Metro
Manila and justifying its decision in favor of "an integrated system of solid waste
management like the San Mateo Landfill.
On 05 January 1998, while the appeal was pending, the petitioners filed a Motion for
Temporary Restraining Order,17 pointing out that the effects of the El Niño phenomenon
would be aggravated by the relentless destruction of the Marikina Watershed Reservation.
They noted that respondent MMDA had, in the meantime, continued to expand the area of
the dumpsite inside the Marikina Watershed Reservation, cutting down thousands of mature
fruit trees and forest trees, and leveling hills and mountains to clear the dumping area.
Garbage disposal operations were also being conducted on a 24-hour basis, with hundreds
of metric tons of wastes being dumped daily, including toxic and infectious hospital wastes,
intensifying the air, ground and water pollution. 18
The petitioners reiterated their prayer that respondent MMDA be temporarily enjoined from
further dumping waste into the site and from encroaching into the area beyond its existing
perimeter fence so as not to render the case moot and academic.
On 28 January 1999, the petitioners filed a Motion for Early Resolution, 19 calling attention to
the continued expansion of the dumpsite by the MMDA that caused the people of Antipolo
to stage a rally and barricade the Marcos Highway to stop the dump trucks from reaching
the site for five successive days from 16 January 1999. On the second day of the barricade,
all the municipal mayors of the province of Rizal openly declared their full support for the
rally, and notified the MMDA that they would oppose any further attempt to dump garbage in
their province.20
As a result, MMDA officials, headed by then Chairman Jejomar Binay, agreed to abandon
the dumpsite after six months. Thus, the municipal mayors of Rizal, particularly the mayors
of Antipolo and San Mateo, agreed to the use of the dumpsite until that period, which would
end on 20 July 1999.21
On 13 July 1999, the petitioners filed an Urgent Second Motion for Early Resolution 22 in
anticipation of violence between the conflicting parties as the date of the scheduled closure
of the dumpsite neared.
On 19 July 1999, then President Joseph E. Estrada, taking cognizance of the gravity of the
problems in the affected areas and the likelihood that violence would erupt among the
parties involved, issued a Memorandum ordering the closure of the dumpsite on 31
December 2000.23 Accordingly, on 20 July 1999, the Presidential Committee on Flagship
Programs and Projects and the MMDA entered into a MOA with the Provincial Government
of Rizal, the Municipality of San Mateo, and the City of Antipolo, wherein the latter agreed to
further extend the use of the dumpsite until its permanent closure on 31 December 2000. 24
On 11 January 2001, President Estrada directed Department of Interior and Local
Government Secretary Alfredo Lim and MMDA Chairman Binay to reopen the San Mateo
dumpsite "in view of the emergency situation of uncollected garbage in Metro Manila,
resulting in a critical and imminent health and sanitation epidemic." 25
Claiming the above events constituted a "clear and present danger of violence erupting in
the affected areas," the petitioners filed an Urgent Petition for Restraining Order 26 on 19
January 2001.
On 24 January 2001, this Court issued the Temporary Restraining Order prayed for,
"effective immediately and until further orders." 27
Josef Elvin Campos
Meanwhile, on 26 January 2001, Republic Act No. 9003, otherwise known as "The
Ecological Solid Waste Management Act of 2000," was signed into law by President
Estrada.
Thus, the petitioners raised only two issues in their Memorandum 28 of 08 February 2005: 1)
whether or not respondent MMDA agreed to the permanent closure of the San Mateo
Landfill as of December 2000, and 2) whether or not the permanent closure of the San
Mateo landfill is mandated by Rep. Act No. 9003.
We hold that the San Mateo Landfill will remain permanently closed.
Although the petitioners may be deemed to have waived or abandoned the issues raised in
their previous pleadings but not included in the memorandum, 29 certain events we shall
relate below have inclined us to address some of the more pertinent issues raised in the
petition for the guidance of the herein respondents, and pursuant to our symbolic function to
educate the bench and bar.30
The law and the facts indicate that a mere MOA does not guarantee the dumpsite’s
permanent closure.
The rally and barricade staged by the people of Antipolo on 28 January 1999, with the full
support of all the mayors of Rizal Province caused the MMDA to agree that it would
abandon the dumpsite after six months. In return, the municipal mayors allowed the use of
the dumpsite until 20 July 1999.
On 20 July 1999, with much fanfare and rhetoric, the Presidential Committee on Flagship
Programs and Projects and the MMDA entered into a MOA with the Provincial Government
of Rizal, the Municipality of San Mateo, and the City of Antipolo, whereby the latter agreed
to an extension for the use of the dumpsite until 31 December 2000, at which time it would
be permanently closed.
Despite this agreement, President Estrada directed Department of Interior and Local
Government Secretary Alfredo Lim and MMDA Chairman Binay to reopen the San Mateo
dumpsite on 11 January 2001, "in view of the emergency situation of uncollected garbage in
Metro Manila, resulting in a critical and imminent health and sanitation epidemic;" our
issuance of a TRO on 24 January 2001 prevented the dumpsite’s reopening.
Were it not for the TRO, then President Estrada’s instructions would have been lawfully
carried out, for as we observed in Oposa v. Factoran, the freedom of contract is not
absolute. Thus:
….. In Abe vs. Foster Wheeler Corp., this Court stated: "The freedom of contract, under
our system of government, is not meant to be absolute. The same is understood to be
subject to reasonable legislative regulation aimed at the promotion of public health, moral,
safety and welfare. In other words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police power of the State, in the
interest of public health, safety, moral and general welfare." The reason for this is
emphatically set forth in Nebia vs. New York, quoted in Philippine American Life Insurance
Co. vs. Auditor General, to wit: "'Under our form of government the use of property and the
making of contracts are normally matters of private and not of public concern. The general
rule is that both shall be free of governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of the public to regulate it in the
common interest.'" In short, the non-impairment clause must yield to the police power of the
state. (Citations omitted, emphasis supplied)
We thus feel there is also the added need to reassure the residents of the Province of Rizal
that this is indeed a final resolution of this controversy, for a brief review of the records of
this case indicates two self-evident facts. First, the San Mateo site has adversely
affected its environs, and second, sources of water should always be protected.
As to the first point, the adverse effects of the site were reported as early as 19 June 1989,
when the Investigation Report of the Community Environment and Natural Resources
Officer of DENR-IV-1 stated that the sources of domestic water supply of over one thousand
families would be adversely affected by the dumping operations. 31 The succeeding report
included the observation that the use of the areas as dumping site greatly affected the
ecological balance and environmental factors of the community. 32 Respondent LLDA in fact
informed the MMA that the heavy pollution and risk of disease generated by dumpsites
rendered the location of a dumpsite within the Marikina Watershed Reservation
incompatible with its program of upgrading the water quality of the Laguna Lake. 33
The DENR suspended the site’s ECC after investigations revealed ground slumping and
erosion had resulted from improper development of the site. 34 Another Investigation
Report35 submitted by the Regional Technical Director to the DENR reported respiratory
Josef Elvin Campos
illnesses among pupils of a primary school located approximately 100 meters from the site,
as well as the constant presence of large flies and windblown debris all over the school’s
playground. It further reiterated reports that the leachate treatment plant had been eroded
twice already, contaminating the nearby creeks that were sources of potable water for the
residents. The contaminated water was also found to flow to the Wawa Dam and
Boso-boso River, which in turn empties into Laguna de Bay.
This brings us to the second self-evident point. Water is life, and must be saved at all costs.
In Collado v. Court of Appeals,36 we had occasion to reaffirm our previous discussion in Sta.
Rosa Realty Development Corporation v. Court of Appeals,37 on the primordial importance
of watershed areas, thus: "The most important product of a watershed is water, which is one
of the most important human necessities. The protection of watersheds ensures an
adequate supply of water for future generations and the control of flashfloods that not only
damage property but also cause loss of lives. Protection of watersheds is an
"intergenerational" responsibility that needs to be answered now. 38
Three short months before Proclamation No. 635 was passed to avert the garbage crisis,
Congress had enacted the National Water Crisis Act 39 to "adopt urgent and effective
measures to address the nationwide water crisis which adversely affects the health and
well-being of the population, food production, and industrialization process. One of the
issues the law sought to address was the "protection and conservation of watersheds."40
In other words, while respondents were blandly declaring that "the reason for the creation of
the Marikina Watershed Reservation, i.e., to protect Marikina River as the source of water
supply of the City of Manila, no longer exists," the rest of the country was gripped by a
shortage of potable water so serious, it necessitated its own legislation.
Respondents’ actions in the face of such grave environmental consequences defy all logic.
The petitioners rightly noted that instead of providing solutions, they have, with unmitigated
callousness, worsened the problem. It is this readiness to wreak irrevocable damage on our
natural heritage in pursuit of what is expedient that has compelled us to rule at length on
this issue. We ignore the unrelenting depletion of our natural heritage at our peril.
I.
The Reorganization Act of the DENR Defines and
Limits Its Powers over the Country’s Natural Resources
The respondents next point out that the Marikina Watershed Reservation, and thus the San
Mateo Site, is located in the public domain. They allege that as such, neither the Province of
Rizal nor the municipality of San Mateo has the power to control or regulate its use since
properties of this nature belong to the national, and not to the local governments.
It is ironic that the respondents should pursue this line of reasoning.
In Cruz v. Secretary of Environment and Natural Resources,41 we had occasion to observe
that "(o)ne of the fixed and dominating objectives of the 1935 Constitutional Convention was
the nationalization and conservation of the natural resources of the country. There was an
overwhelming sentiment in the convention in favor of the principle of state ownership of
natural resources and the adoption of the Regalian doctrine. State ownership of natural
resources was seen as a necessary starting point to secure recognition of the state’s power
to control their disposition, exploitation, development, or utilization." 42
The Regalian doctrine was embodied in the 1935 Constitution, in Section 1 of Article XIII on
"Conservation and Utilization of Natural Resources." This was reiterated in the 1973
Constitution under Article XIV on the "National Economy and the Patrimony of the Nation,"
and reaffirmed in the 1987 Constitution in Section 2 of Article XII on "National Economy and
Patrimony," to wit:
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the exception of agricultural lands, all
other natural resources shall not be alienated. The exploration, development and utilization
of natural resources shall be under the full control and supervision of the State. The State
may directly undertake such activities or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by such citizens. Such agreements may be for a
period not exceeding twenty-five years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant. 43
Clearly, the state is, and always has been, zealous in preserving as much of our natural and
national heritage as it can, enshrining as it did the obligation to preserve and protect the
same within the text of our fundamental law.
Josef Elvin Campos
It was with this objective in mind that the respondent DENR was mandated by then
President Corazon C. Aquino, under Section 4 of Executive Order No. 192, 44 otherwise
known as "The Reorganization Act of the Department of Environment and Natural
Resources," to be "the primary government agency responsible for the conservation,
management, development and proper use of the country’s environment and natural
resources, specifically forest and grazing lands, mineral resources, including those in
reservation and watershed areas, and lands of the public domain. It is also responsible
for the licensing and regulation of all natural resources as may be provided for by law in
order to ensure equitable sharing of the benefits derived therefrom for the welfare of
the present and future generations of Filipinos."
We expounded on this matter in the landmark case of Oposa v. Factoran,45 where we held
that the right to a balanced and healthful ecology is a fundamental legal right that carries
with it the correlative duty to refrain from impairing the environment. This right implies,
among other things, the judicious management and conservation of the country’s resources,
which duty is reposed in the DENR under the aforequoted Section 4 of Executive Order No.
192. Moreover:
Section 3 (of E. O. No. 192) makes the following statement of policy:
SEC. 3. Declaration of Policy. - It is hereby declared the policy of the State to ensure
the sustainable use, development, management, renewal, and conservation of the
country's forest, mineral, land, off-shore areas and other natural resources, including the
protection and enhancement of the quality of the environment, and equitable access of the
different segments of the population to the development and use of the country's natural
resources, not only for the present generation but for future generations as well. It is
also the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization; development and conservation of
our natural resources. (Emphasis ours)
This policy declaration is substantially re-stated in Title XIV, Book IV of the Administrative
Code of 1987, specifically in Section 1 thereof which reads:
SEC. 1. Declaration of Policy. - (1) The State shall ensure, for the benefit of the Filipino
people, the full exploration and development as well as the judicious disposition,
utilization, management, renewal and conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the
necessity of maintaining a sound ecological balance and protecting and enhancing
the quality of the environment and the objective of making the exploration, development
and utilization of such natural resources equitably accessible to the different segments of
the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account
social and environmental cost implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." 46 (Emphasis ours.)
In sum, the Administrative Code of 1987 and Executive Order No. 192 entrust the DENR
with the guardianship and safekeeping of the Marikina Watershed Reservation and our
other natural treasures. However, although the DENR, an agency of the government, owns
the Marikina Reserve and has jurisdiction over the same, this power is not absolute, but is
defined by the declared policies of the state, and is subject to the law and higher
authority. Section 2, Title XIV, Book IV of the Administrative Code of 1987, while specifically
referring to the mandate of the DENR, makes particular reference to the agency’s being
subject to law and higher authority, thus:
SEC. 2. Mandate. - (1) The Department of Environment and Natural Resources shall be
primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization,
and conservation of the country's natural resources.
With great power comes great responsibility. It is the height of irony that the public
respondents have vigorously arrogated to themselves the power to control the San Mateo
site, but have deftly ignored their corresponding responsibility as guardians and protectors
of this tormented piece of land.
II.
The Local Government Code Gives to Local Government Units All the Necessary Powers to
Promote the General Welfare of Their Inhabitants
The circumstances under which Proclamation No. 635 was passed also violates Rep. Act
No. 7160, or the Local Government Code.
Josef Elvin Campos
Contrary to the averment of the respondents, Proclamation No. 635, which was passed on
28 August 1995, is subject to the provisions of the Local Government Code, which was
approved four years earlier, on 10 October 1991.
Section 2(c) of the said law declares that it is the policy of the state " to require all national
agencies and offices to conduct periodic consultations with appropriate local government
units, non-governmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective jurisdictions."
Likewise, Section 27 requires prior consultations before a program shall be implemented by
government authorities and the prior approval of the sanggunian is obtained.
During the oral arguments at the hearing for the temporary restraining order, Director
Uranza of the MMDA Solid Waste Management Task Force declared before the Court of
Appeals that they had conducted the required consultations. However, he added that "(t)his
is the problem, sir, the officials we may have been talking with at the time this was
established may no longer be incumbent and this is our difficulty now. That is what we are
trying to do now, a continuing dialogue." 47
The ambivalent reply of Director Uranza was brought to the fore when, at the height of the
protest rally and barricade along Marcos Highway to stop dump trucks from reaching the
site, all the municipal mayors of the province of Rizal openly declared their full support for
the rally and notified the MMDA that they would oppose any further attempt to dump
garbage in their province. 48
The municipal mayors acted within the scope of their powers, and were in fact fulfilling their
mandate, when they did this. Section 16 allows every local government unit to "exercise the
necessary, appropriate, or incidental for its efficient and effective governance, and those
which are essential to the promotion of the general welfare," which involve, among other
things, "promot(ing) health and safety, enhance(ing) the right of the people to a
balanced ecology, and preserv(ing) the comfort and convenience of their inhabitants.
"
In Lina , Jr. v. Paño,49 we held that Section 2 (c), requiring consultations with the
appropriate local government units, should apply to national government projects affecting
the environmental or ecological balance of the particular community implementing the
project. Rejecting the petitioners’ contention that Sections 2(c) and 27 of the Local
Government Code applied mandatorily in the setting up of lotto outlets around the country,
we held that:
From a careful reading of said provisions, we find that these apply only to national programs
and/or projects which are to be implemented in a particular local community. Lotto is neither
a program nor a project of the national government, but of a charitable institution, the
PCSO. Though sanctioned by the national government, it is far fetched to say that lotto falls
within the contemplation of Sections 2 (c) and 27 of the Local Government Code.
Section 27 of the Code should be read in conjunction with Section 26 thereof. Section 26
reads:
SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological
Balance. It shall be the duty of every national agency or government-owned or controlled
corporation authorizing or involved in the planning and implementation of any project or
program that may cause pollution, climatic change, depletion of non-renewable resources,
loss of crop land, range-land, or forest cover, and extinction of animal or plant species, to
consult with the local government units, nongovernmental organizations, and other sectors
concerned and explain the goals and objectives of the project or program, its impact upon
the people and the community in terms of environmental or ecological balance, and the
measures that will be undertaken to prevent or minimize the adverse effects thereof.
Thus, the projects and programs mentioned in Section 27 should be interpreted to
mean projects and programs whose effects are among those enumerated in Section
26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic
change; (3) may cause the depletion of non-renewable resources; (4) may result in
loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or
plant species from the face of the planet; and (6) other projects or programs that may
call for the eviction of a particular group of people residing in the locality where
these will be implemented. Obviously, none of these effects will be produced by the
introduction of lotto in the province of Laguna. (emphasis supplied)
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas,50 where
we held that there was no statutory requirement for the sangguniang bayan of Puerto
Galera to approve the construction of a mooring facility, as Sections 26 and 27 are
inapplicable to projects which are not environmentally critical.
Josef Elvin Campos
Moreover, Section 447, which enumerates the powers, duties and functions of the
municipality, grants the sangguniang bayan the power to, among other things, "enact
municipality and its inhabitants pursuant to Section 16 of th(e) Code." These include:
(1) Approving ordinances and passing resolutions to protect the environment and impose
appropriate penalties for acts which endanger the environment, such as dynamite
fishing and other forms of destructive fishing, illegal logging and smuggling of logs,
smuggling of natural resources products and of endangered species of flora and fauna,
slash and burn farming, and such other activities which result in pollution, acceleration
of eutrophication of rivers and lakes, or of ecological imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of property within the
jurisdiction of the municipality, adopting a comprehensive land use plan for the
municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent
provisions of this Code, enacting integrated zoning ordinances in consonance with the
approved comprehensive land use plan, subject to existing laws, rules and regulations;
establishing fire limits or zones, particularly in populous centers; and regulating the
construction, repair or modification of buildings within said fire limits or zones in accordance
with the provisions of this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic
services and facilities as provided for under Section 17 of this Code, and in addition to said
services and facilities, …providing for the establishment, maintenance, protection, and
conservation of communal forests and watersheds, tree parks, greenbelts,
mangroves, and other similar forest development projects ….and, subject to existing
laws, establishing and providing for the maintenance, repair and operation of an efficient
waterworks system to supply water for the inhabitants and purifying the source of the
water supply; regulating the construction, maintenance, repair and use of hydrants, pumps,
cisterns and reservoirs; protecting the purity and quantity of the water supply of the
municipality and, for this purpose, extending the coverage of appropriate ordinances
over all territory within the drainage area of said water supply and within one
hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or
watershed used in connection with the water service; and regulating the consumption,
use or wastage of water." [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two requisites must be met before a national
project that affects the environmental and ecological balance of local communities can be
implemented: prior consultation with the affected local communities, and prior approval of
the project by the appropriate sanggunian. Absent either of these mandatory requirements,
the project’s implementation is illegal.
III.
Waste Disposal Is Regulated by the Ecological
Solid Waste Management Act of 2000
The respondents would have us overlook all the abovecited laws because the San Mateo
site is a very expensive - and necessary - fait accompli. The respondents cite the millions of
pesos and hundreds of thousands of dollars the government has already expended in its
development and construction, and the lack of any viable alternative sites.
The Court of Appeals agreed, thus:
During the hearing on the injunction, questions were also asked. "What will happen if the
San Mateo Sanitary Landfill is closed? Where will the daily collections of garbage be
disposed of and dumped?" Atty. Mendoza, one of the lawyers of the petitioners, answered
that each city/municipality ‘must take care of its own.’ Reflecting on that answer, we are
troubled: will not the proliferation of separate open dumpsites be a more serious health
hazard (which ha(s) to be addressed) to the residents of the community? What with the
galloping population growth and the constricting available land area in Metro Manila? There
could be a ‘mini-Smokey Mountain’ in each of the ten cities…comprising Metro Manila,
placing in danger the health and safety of more people. Damage to the environment could
be aggravated by the increase in number of open dumpsites. An integrated system of solid
waste management, like the San Mateo Sanitary Landfill, appears advisable to a populous
metropolis like the Greater Metro Manila Area absent access to better technology. 51
We acknowledge that these are valid concerns. Nevertheless, the lower court should have
been mindful of the legal truism that it is the legislature, by its very nature, which is the
primary judge of the necessity, adequacy, wisdom, reasonableness and expediency of any
law.52
Moreover, these concerns are addressed by Rep. Act No. 9003. Approved on 26 January
2001, "The Ecological Solid Waste Management Act of 2000" was enacted pursuant to the
Josef Elvin Campos
declared policy of the state "to adopt a systematic, comprehensive and ecological solid
waste management system which shall ensure the protection of public health and
environment, and utilize environmentally sound methods that maximize the utilization of
valuable resources and encourage resource conservation and recovery." 53 It requires the
adherence to a Local Government Solid Waste Management Plan with regard to the
collection and transfer, processing, source reduction, recycling, composting and final
disposal of solid wastes, the handling and disposal of special wastes, education and public
information, and the funding of solid waste management projects.
The said law mandates the formulation of a National Solid Waste Management Framework,
which should include, among other things, the method and procedure for the phaseout and
the eventual closure within eighteen months from effectivity of the Act in case of existing
open dumps and/or sanitary landfills located within an aquifer, groundwater reservoir
or watershed area.54 Any landfills subsequently developed must comply with the minimum
requirements laid down in Section 40, specifically that the site selected must be consistent
with the overall land use plan of the local government unit, and that the site must be
located in an area where the landfill’s operation will not detrimentally affect
environmentally sensitive resources such as aquifers, groundwater reservoirs or
watershed areas.55
This writes finis to any remaining aspirations respondents may have of reopening the San
Mateo Site. Having declared Proclamation No. 635 illegal, we see no compelling need to
tackle the remaining issues raised in the petition and the parties’ respective memoranda.
A final word. Laws pertaining to the protection of the environment were not drafted in a
vacuum. Congress passed these laws fully aware of the perilous state of both our economic
and natural wealth. It was precisely to minimize the adverse impact humanity’s actions on
all aspects of the natural world, at the same time maintaining and ensuring an environment
under which man and nature can thrive in productive and enjoyable harmony with each
other, that these legal safeguards were put in place. They should thus not be so lightly cast
aside in the face of what is easy and expedient.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R.
SP No. 41330, dated 13 June 1997, is REVERSED and SET ASIDE. The temporary
restraining order issued by the Court on 24 January 2001 is hereby made permanent.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
B. With other LGUs

VI. Local Initiatives and Referendum
A. Local Initiative
1. Definition
2. Procedure
3. Limitations
B. Local Referendum
1. Definition
Josef Elvin Campos

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PUBLIC CORPORATIONS

Syllabus of Atty. Chris Tenorio

Section 1. The territorial and political subdivisions of the Republic of

4. Types of Local Government Units

G. R. No. 175352 January 18, 2011

A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL REPUBLIC ACT NO.

In his Comment and Manifestation10 filed on November 9, 2009, respondent manifests: (1)

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of

Section 3. That the purposes of this Corporation shall be as follows:

A National Society partakes of a sui generis character. It is a protected component of the

The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose

However, in accordance with the Fundamental Principle of Voluntary Service of National

WHEREFORE, premises considered, respondent Richard J. Gordon’s Motion for

TERESITA J. LEONARDO-DE CASTRO

In Demetria v. Alba,12 the Court declared void Paragraph 1 of Section 44 of PD 1177 for

A National Society PARTAKES OF A SUI GENERIS CHARACTER. It is a protected

This is also the essence of the Fundamental Principle of Independence. No other

Besides, as auxiliaries in the humanitarian services of their host governments, the National

Accordingly, I vote to DENY the Motions for Reconsideration.

Be it enacted by the National Assembly of the Philippines:

Sec. 3. This Act shall take effect upon its approval.

Approved, November 8, 1936. (Emphasis supplied)

Petitioner explained thus:

Hence, herein Petition on the following grounds:

The petition is impressed with merit.

Essentially, the "charter test" as it stands today provides:

[T]he test to determine whether a corporation is government owned or controlled, or private

Section 16 is essentially a re-enactment of Section 7 of Article XVI of the 1935 Constitution

During the formulation of the 1935 Constitution, the Committee on Franchises

x x x The corporation is a creature of the state. It is presumed to be incorporated for the

I. FACTUAL ANTECEDENTS OF THE PETITIONS

II. STATEMENT OF THE PROCEEDINGS

By Resolution of August 4, 2008, the Court issued a Temporary Restraining

By subsequent Resolutions, the Court ordered the consolidation of the petitions.

III. OVERVIEW OF THE MOA-AD

The MOA-AD identifies the Parties to it as the GRP and the MILF.

The Bangsamoro people are acknowledged as having the right to self-governance, which

The MOA-AD further provides for the sharing of minerals on the territorial waters between

The BJE may modify or cancel the forest concessions, timber licenses, contracts or

IV. PROCEDURAL ISSUES

An actual case or controversy involves a conflict of legal rights, an assertion of opposite

The unsigned MOA-AD is simply a list of consensus points subject to further

The Solicitor General cites63 the following provisions of the MOA-AD:

The Solicitor General's arguments fail to persuade.

In the petitions at bar, petitioners Province of North Cotabato (G.R. No.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers,

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development,

Another exclusionary circumstance that may be considered is where there is

Petitions not mooted

Petitions are imbued with paramount public interest

The MOA-AD is part of a series of agreements

Need to formulate principles-guidelines

ON THE FIRST SUBSTANTIVE ISSUE

x x x The incorporation of this right in the Constitution is a recognition of the fundamental

The MOA-AD is a matter of public concern

x x x [T]he right to information "contemplates inclusion of negotiations leading to

The policy of full public disclosure enunciated in above-quoted Section

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional

An essential element of these freedoms is to keep open a continuing dialogue or process of

The imperative of a public consultation, as a species of the right to information, is evident in