Consti

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR.,

IRENE M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their
capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of
Justice, Immigration Commissioner, Secretary of National Defense and Chief of
Staff, respectively, respondents.

CORTES, J.:

Before the Court is a contreversy of grave national importance. While ostensibly only
legal issues are involved, the Court's decision in this case would undeniably have a
profound effect on the political, economic and other aspects of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into exile. In his
stead, Corazon C. Aquino was declared President of the Republic under a revolutionary
government. Her ascension to and consilidation of power have not been unchallenged.
The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover
of television station Channel 7 by rebel troops led by Col. Canlas with the support of
"Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously
return from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms
dealer [Manila Bulletin, January 30, 1987] awakened the nation to the capacity of the
Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty of their
followers in the country. The ratification of the 1987 Constitution enshrined the victory of
"people power" and also clearly reinforced the constitutional moorings of Mrs. Aquino's
presidency. This did not, however, stop bloody challenges to the government. On
August 28, 1987, Col. Gregorio Honasan, one of the major players in the February
Revolution, led a failed coup that left scores of people, both combatants and civilians,
dead. There were several other armed sorties of lesser significance, but the message
they conveyed was the same — a split in the ranks of the military establishment that
thraetened civilian supremacy over military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elements
and among rabid followers of Mr. Marcos. There are also the communist insurgency and
the seccessionist movement in Mindanao which gained ground during the rule of Mr.
Marcos, to the extent that the communists have set up a parallel government of their
own on the areas they effectively control while the separatist are virtually free to move
about in armed bands. There has been no let up on this groups' determination to wrest
power from the govermnent. Not only through resort to arms but also to through the use
of propaganda have they been successful in dreating chaos and destabilizing the
country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the
plunder of the nation attributed to Mr. Marcos and his cronies left the economy
devastated. The efforts at economic recovery, three years after Mrs. Aquino assumed
office, have yet to show concrete results in alleviating the poverty of the masses, while
the recovery of the ill-gotten wealth of the Marcoses has remained elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to
die. But Mrs. Aquino, considering the dire consequences to the nation of his return at a
time when the stability of government is threatened from various directions and the
economy is just beginning to rise and move forward, has stood firmly on the decision to
bar the return of Mr. Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for the case of a dictator forced
out of office and into exile after causing twenty years of political, economic and social
havoc in the country and who within the short space of three years seeks to return, is in
a class by itself.

This petition for mandamus and prohibition asks the Courts to order the respondents to
issue travel documents to Mr. Marcos and the immediate members of his family and to
enjoin the implementation of the President's decision to bar their return to the
Philippines.

The Issue

Th issue is basically one of power: whether or not, in the exercise of the powers granted
by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines.

According to the petitioners, the resolution of the case would depend on the resolution
of the following issues:
 1. Does the President have the power to bar the return of former President
Marcos and family to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President
Marcos and his family from returning to the Philippines, in the interest of
"national security, public safety or public health

a. Has the President made a finding that the return of former President
Marcos and his family to the Philippines is a clear and present danger to
national security, public safety or public health?

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied

with in making such finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed

with, has the President's decision, including the grounds
upon which it was based, been made known to petitioners so
that they may controvert the same?

c. Is the President's determination that the return of former President

Marcos and his family to the Philippines is a clear and present danger to
national security, public safety, or public health a political question?

d. Assuming that the Court may inquire as to whether the return of former
President Marcos and his family is a clear and present danger to national
security, public safety, or public health, have respondents established
such fact?

3. Have the respondents, therefore, in implementing the President's

decision to bar the return of former President Marcos and his family, acted
and would be acting without jurisdiction, or in excess of jurisdiction, or with
grave abuse of discretion, in performing any act which would effectively
bar the return of former President Marcos and his family to the
Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the Marcoses to
return to the Philippines is guaranteed under the following provisions of the Bill of
Rights, to wit:
 Section 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection of
the laws.

xxx xxx xxx

Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by
law.

The petitioners contend that the President is without power to impair the liberty of abode
of the Marcoses because only a court may do so "within the limits prescribed by law."
Nor may the President impair their right to travel because no law has authorized her to
do so. They advance the view that before the right to travel may be impaired by any
authority or agency of the government, there must be legislation to that effect.

The petitioners further assert that under international law, the right of Mr. Marcos and
his family to return to the Philippines is guaranteed.

The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to
return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had been
ratified by the Philippines, provides:

Article 12

1) Everyone lawfully within the territory of a State shall, within that

territory, have the right to liberty of movement and freedom to choose his
residence.

2) Everyone shall be free to leave any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions

except those which are provided by law, are necessary to protect national
security, public order (order public), public health or morals or the rights
and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
 4) No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the respondents' principal argument is that the issue in this case
involves a political question which is non-justiciable. According to the Solicitor General:

As petitioners couch it, the question involved is simply whether or not

petitioners Ferdinand E. Marcos and his family have the right to travel and
liberty of abode. Petitioners invoke these constitutional rights in vacuo
without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or

not petitioners Ferdinand E. Marcos and family have the right to return to
the Philippines and reside here at this time in the face of the determination
by the President that such return and residence will endanger national
security and public safety.

It may be conceded that as formulated by petitioners, the question is not a

political question as it involves merely a determination of what the law
provides on the matter and application thereof to petitioners Ferdinand E.
Marcos and family. But when the question is whether the two rights
claimed by petitioners Ferdinand E. Marcos and family impinge on or
collide with the more primordial and transcendental right of the State to
security and safety of its nationals, the question becomes political and this
Honorable Court can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to

the Philippines and reestablish their residence here? This is clearly a
justiciable question which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to

the Philippines and reestablish their residence here even if their return and
residence here will endanger national security and public safety? this is
still a justiciable question which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners

Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question which this
Honorable Court can not decide for it falls within the exclusive authority
and competence of the President of the Philippines. [Memorandum for
Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national security over
individual rights. In support thereof, they cite Article II of the Constitution, to wit:
 Section 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State
and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal, military, or civil service.

Section 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.

Respondents also point out that the decision to ban Mr. Marcos and family from
returning to the Philippines for reasons of national security and public safety has
international precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza
Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of
Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of
Venezuela were among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S.
Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different light.
Although we give due weight to the parties' formulation of the issues, we are not bound
by its narrow confines in arriving at a solution to the controversy.

At the outset, we must state that it would not do to view the case within the confines of
the right to travel and the import of the decisions of the U.S. Supreme Court in the
leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig
v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel
and recognized exceptions to the exercise thereof, respectively.

It must be emphasized that the individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel
would normally connote. Essentially, the right involved is the right to return to one's
country, a totally distinct right under international law, independent from although
related to the right to travel. Thus, the Universal Declaration of Humans Rights and the
International Covenant on Civil and Political Rights treat the right to freedom of
movement and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration speaks of
the "right to freedom of movement and residence within the borders of each state" [Art.
13(l)] separately from the "right to leave any country, including his own, and to return to
his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to
liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to
"be free to leave any country, including his own." [Art. 12(2)] which rights may be
restricted by such laws as "are necessary to protect national security, public order,
public health or morals or enter qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to
the right to return to one's country in the same context as those pertaining to the liberty
of abode and the right to travel.

The right to return to one's country is not among the rights specifically guaranteed in the
Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our
well-considered view that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the law of the land
[Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to
travel and enjoys a different protection under the International Covenant of Civil and
Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for
the purpose of effectively exercising the right to travel are not determinative of this case
and are only tangentially material insofar as they relate to a conflict between executive
action and the exercise of a protected right. The issue before the Court is novel and
without precedent in Philippine, and even in American jurisprudence.

Consequently, resolution by the Court of the well-debated issue of whether or not there
can be limitations on the right to travel in the absence of legislation to that effect is
rendered unnecessary. An appropriate case for its resolution will have to be awaited.

Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered
approach. We shall first resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall
determine, pursuant to the express power of the Court under the Constitution in Article
VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined that the
return of the Marcose's to the Philippines poses a serious threat to national interest and
welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes
and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly
provides that "[the legislative power shall be vested in the Congress of the Philippines"
Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the Philippines"
[Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not
only establish a separation of powers by actual division [Angara v. Electoral
Commission, supra] but also confer plenary legislative, executive and judicial powers
subject only to limitations provided in the Constitution. For as the Supreme Court in
Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power
means a grant of all legislative power; and a grant of the judicial power means a grant of
all the judicial power which may be exercised under the government." [At 631-632.1 If
this can be said of the legislative power which is exercised by two chambers with a
combined membership of more than two hundred members and of the judicial power
which is vested in a hierarchy of courts, it can equally be said of the executive power
which is vested in one official the President.

As stated above, the Constitution provides that "[t]he executive power shall be vested in
the President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is
meant by executive power" although in the same article it touches on the exercise of
certain powers by the President, i.e., the power of control over all executive
departments, bureaus and offices, the power to execute the laws, the appointing power,
the powers under the commander-in-chief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty with the concurrence of
Congress, the power to contract or guarantee foreign loans, the power to enter into
treaties or international agreements, the power to submit the budget to Congress, and
the power to address Congress [Art. VII, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President did
the framers of the Constitution intend that the President shall exercise those specific
powers and no other? Are these se enumerated powers the breadth and scope of
"executive power"? Petitioners advance the view that the President's powers are limited
to those specifically enumerated in the 1987 Constitution. Thus, they assert: "The
President has enumerated powers, and what is not enumerated is impliedly denied to
her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p.
233.1 This argument brings to mind the institution of the U.S. Presidency after which
ours is legally patterned.**

Corwin, in his monumental volume on the President of the United States grappled with
the same problem. He said:

Article II is the most loosely drawn chapter of the Constitution. To those

who think that a constitution ought to settle everything beforehand it
should be a nightmare; by the same token, to those who think that
constitution makers ought to leave considerable leeway for the future play
of political forces, it should be a vision realized.

We encounter this characteristic of Article 11 in its opening words: "The

executive power shall be vested in a President of the United States of
America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different
persons who held the office from Washington to the early 1900's, and the swing from
the presidency by commission to Lincoln's dictatorship, he concluded that "what the
presidency is at any particular moment depends in important measure on who is
President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it

remained of course, an agency of government subject to unvarying
demands and duties no remained, of cas President. But, more than most
agencies of government, it changed shape, intensity and ethos according
to the man in charge. Each President's distinctive temperament and
character, his values, standards, style, his habits, expectations,
Idiosyncrasies, compulsions, phobias recast the WhiteHouse and
pervaded the entire government. The executive branch, said Clark
Clifford, was a chameleon, taking its color from the character and
personality of the President. The thrust of the office, its impact on the
constitutional order, therefore altered from President to President. Above
all, the way each President understood it as his personal obligation to
inform and involve the Congress, to earn and hold the confidence of the
electorate and to render an accounting to the nation and posterity
determined whether he strengthened or weakened the constitutional
order. [At 212- 213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does but,
rather, that the consideration of tradition and the development of presidential power
under the different constitutions are essential for a complete understanding of the extent
of and limitations to the President's powers under the 1987 Constitution. The 1935
Constitution created a strong President with explicitly broader powers than the U.S.
President. The 1973 Constitution attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but through numerous
amendments, the President became even more powerful, to the point that he was also
the de facto Legislature. The 1987 Constitution, however, brought back the presidential
system of government and restored the separation of legislative, executive and judicial
powers by their actual distribution among three distinct branches of government with
provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to
enforce the laws, for the President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the office unless the Constitution
itself withholds it. Furthermore, the Constitution itself provides that the execution of the
laws is only one of the powers of the President. It also grants the President other
powers that do not involve the execution of any provision of law, e.g., his power over the
country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power." Corollarily, the powers
of the President cannot be said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more than the sum of specific
powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who
between the Governor-General of the Philippines and the Legislature may vote the
shares of stock held by the Government to elect directors in the National Coal Company
and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of
the Governor-General to do so, said:

...Here the members of the legislature who constitute a majority of the

"board" and "committee" respectively, are not charged with the
performance of any legislative functions or with the doing of anything
which is in aid of performance of any such functions by the legislature.
Putting aside for the moment the question whether the duties devolved
upon these members are vested by the Organic Act in the Governor-
General, it is clear that they are not legislative in character, and still more
clear that they are not judicial. The fact that they do not fall within the
authority of either of these two constitutes logical ground for concluding
that they do fall within that of the remaining one among which the powers
of government are divided ....[At 202-203; Emphasis supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of
dissent we find reinforcement for the view that it would indeed be a folly to construe the
powers of a branch of government to embrace only what are specifically mentioned in
the Constitution:

The great ordinances of the Constitution do not establish and divide fields
of black and white. Even the more specific of them are found to terminate
in a penumbra shading gradually from one extreme to the other. ....

xxx xxx xxx

It does not seem to need argument to show that however we may disguise
it by veiling words we do not and cannot carry out the distinction between
legislative and executive action with mathematical precision and divide the
branches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution requires. [At
210- 211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of
theGovernment is to serve and protect the people" and that "[t]he 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."
[Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order,
the protection of life, liberty and property, and the promotion of the general welfare are
essentially ideals to guide governmental action. But such does not mean that they are
empty words. Thus, in the exercise of presidential functions, in drawing a plan of
government, and in directing implementing action for these plans, or from another point
of view, in making any decision as President of the Republic, the President has to
consider these principles, among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses to
return to the Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision. More than that, having sworn to
defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from being an allocation of
power is also a social contract whereby the people have surrendered their sovereign
powers to the State for the common good. Hence, lest the officers of the Government
exercising the powers delegated by the people forget and the servants of the people
become rulers, the Constitution reminds everyone that "[s]overeignty resides in the
people and all government authority emanates from them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to return
to the country are the deposed dictator and his family at whose door the travails of the
country are laid and from whom billions of dollars believed to be ill-gotten wealth are
sought to be recovered. The constitutional guarantees they invoke are neither absolute
nor inflexible. For the exercise of even the preferred freedoms of speech and
ofexpression, although couched in absolute terms, admits of limits and must be
adjusted to the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and the common
good against the exercise of rights of certain individuals. The power involved is the
President's residual power to protect the general welfare of the people. It is founded on
the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt,
it is not only the power of the President but also his duty to do anything not forbidden by
the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at
153]. It is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty to take
care that the laws are faithfully executed [see Hyman, The American President, where
the author advances the view that an allowance of discretionary power is unavoidable in
any government and is best lodged in the President].

More particularly, this case calls for the exercise of the President's powers as protector
of the peace. Rossiter The American Presidency].The power of the President to keep
the peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its existence.
The President is not only clothed with extraordinary powers in times of emergency, but
is also tasked with attending to the day-to-day problems of maintaining peace and order
and ensuring domestic tranquility in times when no foreign foe appears on the horizon.
Wide discretion, within the bounds of law, in fulfilling presidential duties in times of
peace is not in any way diminished by the relative want of an emergency specified in
the commander-in-chief provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the President's exercising
as Commander-in- Chief powers short of the calling of the armed forces, or suspending
the privilege of the writ of habeas corpus or declaring martial law, in order to keep the
peace, and maintain public order and security.

That the President has the power under the Constitution to bar the Marcose's from
returning has been recognized by memembers of the Legislature, and is manifested by
the Resolution proposed in the House of Representatives and signed by 103 of its
members urging the President to allow Mr. Marcos to return to the Philippines "as a
genuine unselfish gesture for true national reconciliation and as irrevocable proof of our
collective adherence to uncompromising respect for human rights under the Constitution
and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not
question the President's power to bar the Marcoses from returning to the Philippines,
rather, it appeals to the President's sense of compassion to allow a man to come home
to die in his country.

What we are saying in effect is that the request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never contemplated situations even
remotely similar to the present one. It must be treated as a matter that is appropriately
addressed to those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to safeguard and protect general
welfare. In that context, such request or demand should submit to the exercise of a
broader discretion on the part of the President to determine whether it must be granted
or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government." [Art. VIII, Sec. 1] Given
this wording, we cannot agree with the Solicitor General that the issue constitutes a
political question which is beyond the jurisdiction of the Court to decide.

The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would
have normally left to the political departments to decide. But nonetheless there remain
issues beyond the Court's jurisdiction the determination of which is exclusively for the
President, for Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may appear. We
cannot set aside a presidential pardon though it may appear to us that the beneficiary is
totally undeserving of the grant. Nor can we amend the Constitution under the guise of
resolving a dispute brought before us because the power is reserved to the people.

There is nothing in the case before us that precludes our determination thereof on the
political question doctrine. The deliberations of the Constitutional Commission cited by
petitioners show that the framers intended to widen the scope of judicial review but they
did not intend courts of justice to settle all actual controversies before them. When
political questions are involved, the Constitution limits the determination to whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. If grave abuse is
not established, the Court will not substitute its judgment for that of the official
concerned and decide a matter which by its nature or by law is for the latter alone to
decide. In this light, it would appear clear that the second paragraph of Article VIII,
Section 1 of the Constitution, defining "judicial power," which specifically empowers the
courts to determine whether or not there has been a grave abuse of discretion on the
part of any branch or instrumentality of the government, incorporates in the fundamental
law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA
4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers underlying
our system of government, the Executive is supreme within his own
sphere. However, the separation of powers, under the Constitution, is not
absolute. What is more, it goes hand in hand with the system of checks
and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the sphere
alloted to him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which, in this
respect, is, in turn, constitutionally supreme. In the exercise of such
authority, the function of the Court is merely to check — not to supplant
the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in
him or to determine the wisdom of his act [At 479-480.]

Accordingly, the question for the Court to determine is whether or not there exist factual
bases for the President to conclude that it was in the national interest to bar the return
of the Marcoses to the Philippines. If such postulates do exist, it cannot be said that she
has acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to
bar their return.

We find that from the pleadings filed by the parties, from their oral arguments, and the
facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces
of the Philippines and the National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the President's decision..

The Court cannot close its eyes to present realities and pretend that the country is not
besieged from within by a well-organized communist insurgency, a separatist movement
in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with
impunity of military men, police officers and civilian officials, to mention only a few. The
documented history of the efforts of the Marcose's and their followers to destabilize the
country, as earlier narrated in this ponencia bolsters the conclusion that the return of the
Marcoses at this time would only exacerbate and intensify the violence directed against
the State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The
military establishment has given assurances that it could handle the threats posed by
particular groups. But it is the catalytic effect of the return of the Marcoses that may
prove to be the proverbial final straw that would break the camel's back. With these
before her, the President cannot be said to have acted arbitrarily and capriciously and
whimsically in determining that the return of the Marcoses poses a serious threat to the
national interest and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the
escalation of violence against the State, that would be the time for the President to step
in and exercise the commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence. The State, acting through the Government, is not
precluded from taking pre- emptive action against threats to its existence if, though still
nascent they are perceived as apt to become serious and direct. Protection of the
people is the essence of the duty of government. The preservation of the State the
fruition of the people's sovereignty is an obligation in the highest order. The President,
sworn to preserve and defend the Constitution and to see the faithful execution the
laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover
from the hardships brought about by the plunder of the economy attributed to the
Marcoses and their close associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the Government has barely
scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed
away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually
increasing burden imposed on the economy by the excessive foreign borrowing during
the Marcos regime, which stifles and stagnates development and is one of the root
causes of widespread poverty and all its attendant ills. The resulting precarious state of
our economy is of common knowledge and is easily within the ambit of judicial notice.

The President has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years and lead to
total economic collapse. Given what is within our individual and common knowledge of
the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of former
President Marcos and his family at the present time and under present circumstances
poses a serious threat to national interest and welfare and in prohibiting their return to
the Philippines, the instant petition is hereby DISMISSED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 191002 March 17, 2010

ARTURO M. DE CASTRO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL -
ARROYO, Respondents.

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

G.R. No. 191032

JAIME N. SORIANO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

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

G.R. No. 191057

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

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

A.M. No. 10-2-5-SC

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION
TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,

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

G.R. No. 191149

JOHN G. PERALTA, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLE'S LAWYERS; MARLOU B. UBANO; INTEGRATED
BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its
Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own
personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L.
BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL
GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG
SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN
LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE
OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN
RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE
PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN
MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA
GUEVARRA; WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN
TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by
YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP;
TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA;
MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON.
Intervenors.

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

G.R. No. 191342

ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY.

ROLAND B. INTING (IBP Governor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-
ARROYO, Respondents.

DECISION

BERSAMIN, J.:

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days
after the coming presidential elections on May 10, 2010. Even before the event actually happens,
it is giving rise to many legal dilemmas. May the incumbent President appoint his successor,
considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the
President or Acting President from making appointments within two months immediately before
the next presidential elections and up to the end of his term, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger
public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the
Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90
days from the occurrence thereof, to the matter of the appointment of his successor? May the
Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or
being considered to succeed Chief Justice Puno, and submit the list of nominees to the incumbent
President even during the period of the prohibition under Section 15, Article VII? Does
mandamus lie to compel the submission of the shortlist of nominees by the JBC?

Precís of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 1910021
and G.R. No. 1911492 as special civil actions for certiorari and mandamus, praying that the JBC
be compelled to submit to the incumbent President the list of at least three nominees for the
position of the next Chief Justice.

In G.R. No. 191032,3 Jaime N. Soriano, via his petition for prohibition, proposes to prevent the
JBC from conducting its search, selection and nomination proceedings for the position of Chief
Justice.

In G.R. No. 191057, a special civil action for mandamus,4 the Philippine Constitution
Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of
Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because
the incumbent President is not covered by the prohibition that applies only to appointments in the
Executive Department.

In Administrative Matter No. 10-2-5-SC,5 petitioner Estelito M. Mendoza, a former Solicitor

General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15,
Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,6 which the Court consolidated on March 9, 2010 with the petitions earlier
filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines
(IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and
restrain the JBC from submitting a list of nominees for the position of Chief Justice to the
President for appointment during the period provided for in Section 15, Article VII.

All the petitions now before the Court pose as the principal legal question whether the incumbent
President can appoint the successor of Chief Justice Puno upon his retirement. That question is
undoubtedly impressed with transcendental importance to the Nation, because the appointment
of the Chief Justice is any President’s most important appointment.

A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62,
Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),7 by which the Court
held that Section 15, Article VII prohibited the exercise by the President of the power to appoint
to judicial positions during the period therein fixed.

In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by
legal luminaries – one side holds that the incumbent President is prohibited from making
appointments within two months immediately before the coming presidential elections and until
the end of her term of office as President on June 30, 2010, while the other insists that the
prohibition applies only to appointments to executive positions that may influence the election
and, anyway, paramount national interest justifies the appointment of a Chief Justice during the
election ban – has impelled the JBC to defer the decision to whom to send its list of at least three
nominees, whether to the incumbent President or to her successor.8 He opines that the JBC is
thereby arrogating unto itself "the judicial function that is not conferred upon it by the
Constitution," which has limited it to the task of recommending appointees to the Judiciary, but
has not empowered it to "finally resolve constitutional questions, which is the power vested only
in the Supreme Court under the Constitution." As such, he contends that the JBC acted with
grave abuse of discretion in deferring the submission of the list of nominees to the President; and
that a "final and definitive resolution of the constitutional questions raised above would diffuse
(sic) the tension in the legal community that would go a long way to keep and maintain stability
in the judiciary and the political system."9

In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion
amounting to lack or excess of its jurisdiction when it resolved unanimously on January 18, 2010
to open the search, nomination, and selection process for the position of Chief Justice to succeed
Chief Justice Puno, because the appointing authority for the position of Chief Justice is the
Supreme Court itself, the President’s authority being limited to the appointment of the Members
of the Supreme Court. Hence, the JBC should not intervene in the process, unless a nominee is
not yet a Member of the Supreme Court.10

For its part, PHILCONSA observes in its petition in G.R. No. 191057 that "unorthodox and
exceptional circumstances spawned by the discordant interpretations, due perhaps to a
perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of
the Constitution" have bred "a frenzied inflammatory legal debate on the constitutional
provisions mentioned that has divided the bench and the bar and the general public as well,
because of its dimensional impact to the nation and the people," thereby fashioning
"transcendental questions or issues affecting the JBC’s proper exercise of its "principal function
of recommending appointees to the Judiciary" by submitting only to the President (not to the
next President) "a list of at least three nominees prepared by the Judicial and Bar Council for
every vacancy" from which the members of the Supreme Court and judges of the lower courts
may be appointed."11 PHILCONSA further believes and submits that now is the time to revisit
and review Valenzuela, the "strange and exotic Decision of the Court en banc."12

Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC "to
immediately transmit to the President, within a reasonable time, its nomination list for the
position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in
compliance with its mandated duty under the Constitution" in the event that the Court resolves
that the President can appoint a Chief Justice even during the election ban under Section 15,
Article VII of the Constitution.13

The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the
"JBC has initiated the process of receiving applications for the position of Chief Justice and has
in fact begun the evaluation process for the applications to the position," and "is perilously near
completing the nomination process and coming up with a list of nominees for submission to the
President, entering into the period of the ban on midnight appointments on March 10, 2010,"
which "only highlights the pressing and compelling need for a writ of prohibition to enjoin such
alleged ministerial function of submitting the list, especially if it will be cone within the period
of the ban on midnight appointments."14

Antecedents

These cases trace their genesis to the controversy that has arisen from the forthcoming
compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the
presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that "vacancy
shall be filled within ninety days from the occurrence thereof" from a "list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy."

On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC,
addressed a letter to the JBC, requesting that the process for nominations to the office of the
Chief Justice be commenced immediately.

In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,15 which reads:

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of
filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the
incumbent Chief Justice Honorable Reynato S. Puno.

It will publish the opening of the position for applications or recommendations; deliberate on the
list of candidates; publish the names of candidates; accept comments on or opposition to the
applications; conduct public interviews of candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in the light of the
Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on
the matter.

18 January 2010.

(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or recommendation, and
published for that purpose its announcement dated January 20, 2010,16 viz:

The Judicial and Bar Council (JBC) announces the opening for application or recommendation,
of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17
May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO.

Applications or recommendations for this position must be submitted not later than 4 February
2010 (Thursday) to the JBC Secretariat xxx:

The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The
Philippine Star.17

Conformably with its existing practice, the JBC "automatically considered" for the position of
Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate
Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita
Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio
Eduardo B. Nachura. However, the last two declined their nomination through letters dated
January 18, 2010 and January 25, 2010, respectively.18

Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for
Luzon, applied, but later formally withdrew his name from consideration through his letter dated
February 8, 2010. Candidates who accepted their nominations without conditions were Associate
Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice
Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who
accepted their nominations with conditions were Associate Justice Antonio T. Carpio and
Associate Justice Conchita Carpio Morales.19 Declining their nominations were Atty. Henry
Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010)
and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Executive Officer of the
JBC on February 8, 2010).20

The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet
the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of
the Ombudsman (due to cases pending in the Office of the Ombudsman).21
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing
the names of the following candidates to invite the public to file their sworn complaint, written
report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio,
Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De
Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in
the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.22

Issues

Although it has already begun the process for the filling of the position of Chief Justice Puno in
accordance with its rules, the JBC is not yet decided on when to submit to the President its list of
nominees for the position due to the controversy now before us being yet unresolved. In the
meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon
the retirement of Chief Justice Puno.

The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also
among non-legal quarters, and brought out highly disparate opinions on whether the incumbent
President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela,
which involved the appointments of two judges of the Regional Trial Court, the Court addressed
this issue now before us as an administrative matter "to avoid any possible polemics concerning
the matter," but he opines that the polemics leading to Valenzuela "would be miniscule [sic]
compared to the "polemics" that have now erupted in regard to the current controversy," and that
unless "put to a halt, and this may only be achieved by a ruling from the Court, the integrity of
the process and the credibility of whoever is appointed to the position of Chief Justice, may
irreparably be impaired."23

Accordingly, we reframe the issues as submitted by each petitioner in the order of the
chronological filing of their petitions.

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the constitutional question of
whether the incumbent President can appoint a Chief Justice during the election ban
period?

b. Does the incumbent President have the power and authority to appoint during the
election ban the successor of Chief Justice Puno when he vacates the position of Chief
Justice on his retirement on May 17, 2010?

G.R. No. 191032

a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc?

G.R. No. 191057

 a. Is the constitutional prohibition against appointment under Section 15, Article VII of
the Constitution applicable only to positions in the Executive Department?

b. Assuming that the prohibition under Section 15, Article VII of the Constitution also
applies to members of the Judiciary, may such appointments be excepted because they
are impressed with public interest or are demanded by the exigencies of public service,
thereby justifying these appointments during the period of prohibition?

c. Does the JBC have the authority to decide whether or not to include and submit the
names of nominees who manifested interest to be nominated for the position of Chief
Justice on the understanding that his/her nomination will be submitted to the next
President in view of the prohibition against presidential appointments from March 11,
2010 until June 30, 2010?

A. M. No. 10-2-5-SC

a. Does Section 15, Article VII of the Constitution apply to appointments to positions in
the Judiciary under Section 9, Article VIII of the Constitution?

b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after

March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno
retires on May 17, 2010?

G.R. No. 191149

a. Does the JBC have the discretion to withhold the submission of the short list to
President Gloria Macapagal-Arroyo?

G.R. No. 191342

a. Does the JBC have the authority to submit the list of nominees to the incumbent
President without committing a grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from making midnight appointments two months
immediately preceding the next presidential elections until the end of her term?

b. Is any act performed by the JBC, including the vetting of the candidates for the
position of Chief Justice, constitutionally invalid in view of the JBC's illegal composition
allowing each member from the Senate and the House of Representatives to have one
vote each?

On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG)
to comment on the consolidated petitions, except that filed in G.R. No. 191342.

On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of
the process for the selection of the nominees for the position of Chief Justice would be the public
interview of the candidates and the preparation of the short list of candidates, "including the
interview of the constitutional experts, as may be needed."24 It stated:25

Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper
appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides
that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence
thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential
appointments "two (2) months immediately before the next presidential elections and up to the
end of his term" and Section 261 (g), Article XXII of the Omnibus Election Code of the
Philippines.

12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will
be guided by its decision in these consolidated Petitions and Administrative Matter.

On February 26, 2010, the OSG also submitted its comment, essentially stating that the
incumbent President can appoint the successor of Chief Justice Puno upon his retirement by May
17, 2010.

The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing
its principal function under the Constitution to recommend appointees in the Judiciary; (b) the
JBC's function to recommend is a "continuing process," which does not begin with each vacancy
or end with each nomination, because the goal is "to submit the list of nominees to Malacañang
on the very day the vacancy arises";26 the JBC was thus acting within its jurisdiction when it
commenced and set in motion the process of selecting the nominees to be submitted to the
President for the position of Chief Justice to be vacated by Chief Justice Puno;27 (c) petitioner
Soriano's theory that it is the Supreme Court, not the President, who has the power to appoint the
Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase "members of the
Supreme Court" found in Section 9, Article VIII of the Constitution as referring only to the
Associate Justices, to the exclusion of the Chief Justice; 28 (d) a writ of mandamus can issue to
compel the JBC to submit the list of nominees to the President, considering that its duty to
prepare the list of at least three nominees is unqualified, and the submission of the list is a
ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the
nature of whose principal function is executive, is not vested with the power to resolve who has
the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the
list from the President; 29 and (e) a writ of mandamus cannot issue to compel the JBC to include
or exclude particular candidates as nominees, considering that there is no imperative duty on its
part to include in or exclude from the list particular individuals, but, on the contrary, the JBC's
determination of who it nominates to the President is an exercise of a discretionary duty.30

The OSG contends that the incumbent President may appoint the next Chief Justice, because the
prohibition under Section 15, Article VII of the Constitution does not apply to appointments in
the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90
days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; 31 that in
their deliberations on the mandatory period for the appointment of Supreme Court Justices, the
framers neither mentioned nor referred to the ban against midnight appointments, or its effects
on such period, or vice versa;32 that had the framers intended the prohibition to apply to Supreme
Court appointments, they could have easily expressly stated so in the Constitution, which
explains why the prohibition found in Article VII (Executive Department) was not written in
Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample
restrictions or limitations on the President's power to appoint members of the Supreme Court to
ensure its independence from "political vicissitudes" and its "insulation from political
pressures,"33 such as stringent qualifications for the positions, the establishment of the JBC, the
specified period within which the President shall appoint a Supreme Court Justice.

The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation
now refers to the appointment of the next Chief Justice to which the prohibition does not apply;
that, at any rate, Valenzuela even recognized that there might be "the imperative need for an
appointment during the period of the ban," like when the membership of the Supreme Court
should be "so reduced that it will have no quorum, or should the voting on a particular important
question requiring expeditious resolution be divided";34 and that Valenzuela also recognized that
the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if
there is any compelling reason to justify the making of the appointments during the period of the
prohibition.35

Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent
President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive
political issues is "quite expected";36 (b) the Court acts as the Presidential Electoral Tribunal
(PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns, and
qualifications of the President and Vice President and, as such, has "the power to correct
manifest errors on the statement of votes (SOV) and certificates of canvass (COC)";37 (c) if
history has shown that during ordinary times the Chief Justice was appointed immediately upon
the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now
even more reason to appoint the next Chief Justice immediately upon the retirement of Chief
Justice Puno;38 and (d) should the next Chief Justice come from among the incumbent Associate
Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the
JBC to start the selection process for the filling up of the vacancy in accordance with the
constitutional mandate.39

On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to

wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera
(Corvera);40

(b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S.
Lim (Lim);

(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr.
(Tan);

(d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union

of People's Lawyers (NUPL);
 (e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano
(Ubano);

(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the
Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P.
Torreon (IBP- Davao del Sur);

(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L.
Boiser (Boiser);

(h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of

BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M.
Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government
Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang
Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang
Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard
Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS)
Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the
Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines
(CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines
(SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);

(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta
Ann P. Rosales (Bello et al.); and

(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the

Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty.
Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita
Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana;
Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the
position that De Castro's petition was bereft of any basis, because under Section 15, Article VII,
the outgoing President is constitutionally banned from making any appointments from March 10,
2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno.
Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing
President if the constitutional prohibition is already in effect. Tan adds that the prohibition
against midnight appointments was applied by the Court to the appointments to the Judiciary
made by then President Ramos, with the Court holding that the duty of the President to fill the
vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the
submission of the list (for all other courts) was not an excuse to violate the constitutional
prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the
insistence that Valenzuela recognizes the possibility that the President may appoint the next
Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter
dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause
epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that
even without the successor of Chief Justice Puno being appointed by the incumbent President,
the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven members at
its discretion; that a full membership of the Court is not necessary; that petitioner De Castro's
fears are unfounded and baseless, being based on a mere possibility, the occurrence of which is
entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is
unconstitutional and, therefore, void; and that such a situation will create a crisis in the judicial
system and will worsen an already vulnerable political situation.

ice is imperative for the stability of the judicial system and the political situation in the country
when the election-related questions reach the Court as false, because there is an existing law on
filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section
12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any
other law; that a temporary or an acting Chief Justice is not anathema to judicial independence;
that the designation of an acting Chief Justice is not only provided for by law, but is also dictated
by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution,
but the Commissioners decided not to write it in the Constitution on account of the settled
practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of
the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the
position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling
up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in
the case of the vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac,
192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession
has been repeatedly observed and has become a part of its tradition.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code
penalizes as an election offense the act of any government official who appoints, promotes, or
gives any increase in salary or remuneration or privilege to any government official or employee
during the period of 45 days before a regular election; that the provision covers all appointing
heads, officials, and officers of a government office, agency or instrumentality, including the
President; that for the incumbent President to appoint the next Chief Justice upon the retirement
of Chief Justice Puno, or during the period of the ban under the Omnibus Election Code,
constitutes an election offense; that even an appointment of the next Chief Justice prior to the
election ban is fundamentally invalid and without effect because there can be no appointment
until a vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010.

Intervenor Boiser adds that De Castro's prayer to compel the submission of nominees by the JBC
to the incumbent President is off-tangent because the position of Chief Justice is still not vacant;
that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly
premature; that the proposed advance appointment by the incumbent President of the next Chief
Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there
is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between
the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that the
appointments by the President of the two judges during the prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply
only to the appointments in the Executive Department, but also to judicial appointments,
contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that
Valenzuela already interpreted the prohibition as applicable to judicial appointments.

Intervenor WTLOP further posits that petitioner Soriano's contention that the power to appoint
the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless,
because the Chief Justice is also a Member of the Supreme Court as contemplated under Section
9, Article VIII; and that, at any rate, the term "members" was interpreted in Vargas v. Rillaroza
(G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of
the Supreme Court; that PHILCONSA's prayer that the Court pass a resolution declaring that
persons who manifest their interest as nominees, but with conditions, shall not be considered
nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that
such glaring inconsistency between the allegations in the body and the relief prayed for
highlights the lack of merit of PHILCONSA's petition; that the role of the JBC cannot be
separated from the constitutional prohibition on the President; and that the Court must direct the
JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected
President after the period of the constitutional ban against midnight appointments has expired.

Oppositor IBP Davao del Sur opines that the JBC - because it is neither a judicial nor a quasi-
judicial body - has no duty under the Constitution to resolve the question of whether the
incumbent President can appoint a Chief Justice during the period of prohibition; that even if the
JBC has already come up with a short list, it still has to bow to the strict limitations under
Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto
itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the
application of the general rule in Section 15, Article VII to the Judiciary does not violate the
principle of separation of powers, because said provision is an exception.

Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBC's act of nominating
appointees to the Supreme Court is purely ministerial and does not involve the exercise of
judgment; that there can be no default on the part of the JBC in submitting the list of nominees to
the President, considering that the call for applications only begins from the occurrence of the
vacancy in the Supreme Court; and that the commencement of the process of screening of
applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on
May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the
submission or non-submission of the list of nominees to the President by the JBC is a matter of
right under law.

The main question presented in all the filings herein - because it involves two seemingly
conflicting provisions of the Constitution - imperatively demands the attention and resolution of
this Court, the only authority that can resolve the question definitively and finally. The
imperative demand rests on the ever-present need, first, to safeguard the independence,
reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has
been unnecessarily dragged into the harsh polemics brought on by the controversy; second, to
settle once and for all the doubt about an outgoing President's power to appoint to the Judiciary
within the long period starting two months before the presidential elections until the end of the
presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of
its primary office of screening and nominating qualified persons for appointment to the
Judiciary.

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners have locus standi.

Black defines locus standi as "a right of appearance in a court of justice on a given question."41
In public or constitutional litigations, the Court is often burdened with the determination of the
locus standi of the petitioners due to the ever-present need to regulate the invocation of the
intervention of the Court to correct any official action or policy in order to avoid obstructing the
efficient functioning of public officials and offices involved in public service. It is required,
therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as
indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:42

The question on legal standing is whether such parties have "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."43 Accordingly, it has been held that the interest of a person assailing
the constitutionality of a statute must be direct and personal. He must be able to show, not only
that the law or any government act is invalid, but also that he sustained or is in imminent danger
of sustaining some direct injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of.44

It is true that as early as in 1937, in People v. Vera,45 the Court adopted the direct injury test for
determining whether a petitioner in a public action had locus standi. There, the Court held that
the person who would assail the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result." Vera was
followed in Custodio v. President of the Senate,46 Manila Race Horse Trainers' Association v.
De la Fuente,47 Anti-Chinese League of the Philippines v. Felix,48 and Pascual v. Secretary of
Public Works.49

Yet, the Court has also held that the requirement of locus standi, being a mere procedural
technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in
Araneta v. Dinglasan,50 the Court liberalized the approach when the cases had "transcendental
importance." Some notable controversies whose petitioners did not pass the direct injury test
were allowed to be treated in the same way as in Araneta v. Dinglasan.51

In the 1975 decision in Aquino v. Commission on Elections,52 this Court decided to resolve the
issues raised by the petition due to their "far-reaching implications," even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been
adopted in several notable cases, permitting ordinary citizens, legislators, and civic

organizations to bring their suits involving the constitutionality or validity of laws, regulations,
and rulings.53

However, the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner represents
the public in general. Although such petitioner may not be as adversely affected by the action
complained against as are others, it is enough that he sufficiently demonstrates in his petition that
he is entitled to protection or relief from the Court in the vindication of a public right.

Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus
standi. That is not surprising, for even if the issue may appear to concern only the public in
general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David
v. Macapagal-Arroyo,54 the Court aptly explains why:

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,55 where it was held that the
plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins:56 "In matter of mere public right, however…the people are the
real parties…It is at least the right, if not the duty, of every citizen to interfere and see that
a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer's suits, Terr v. Jordan57 held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."58

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No.
191149) all assert their right as citizens filing their petitions on behalf of the public who are
directly affected by the issue of the appointment of the next Chief Justice. De Castro and Soriano
further claim standing as taxpayers, with Soriano averring that he is affected by the continuing
proceedings in the JBC, which involve "unnecessary, if not, illegal disbursement of public
funds."59

PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for
the purpose of defending, protecting, and preserving the Constitution and promoting its growth
and flowering. It also alleges that the Court has recognized its legal standing to file cases on
constitutional issues in several cases.60
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the
Philippine Bar engaged in the active practice of law, and a former Solicitor General, former
Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang
Pambansa, and former member of the Faculty of the College of Law of the University of the
Philippines.

The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines
(IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal standing to
enjoin the submission of the list of nominees by the JBC to the President, for "[a]n adjudication
of the proper interpretation and application of the constitutional ban on midnight appointments
with regard to respondent JBC's function in submitting the list of nominees is well within the
concern of petitioners, who are duty bound to ensure that obedience and respect for the
Constitution is upheld, most especially by government offices, such as respondent JBC, who are
specifically tasked to perform crucial functions in the whole scheme of our democratic
institution." They further allege that, reposed in them as members of the Bar, is a clear legal
interest in the process of selecting the members of the Supreme Court, and in the selection of the
Chief Justice, considering that the person appointed becomes a member of the body that has
constitutional supervision and authority over them and other members of the legal profession.61

The Court rules that the petitioners have each demonstrated adequate interest in the outcome of
the controversy as to vest them with the requisite locus standi. The issues before us are of
transcendental importance to the people as a whole, and to the petitioners in particular. Indeed,
the issues affect everyone (including the petitioners), regardless of one's personal interest in life,
because they concern that great doubt about the authority of the incumbent President to appoint
not only the successor of the retiring incumbent Chief Justice, but also others who may serve in
the Judiciary, which already suffers from a far too great number of vacancies in the ranks of trial
judges throughout the country.

In any event, the Court retains the broad discretion to waive the requirement of legal standing in
favor of any petitioner when the matter involved has transcendental importance, or otherwise
requires a liberalization of the requirement.62

Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in
order to remove any obstacle or obstruction to the resolution of the essential issue squarely
presented herein. We are not to shirk from discharging our solemn duty by reason alone of an
obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air Terminals
Co., Inc.,63 we pointed out: "Standing is a peculiar concept in constitutional law because in some
cases, suits are not brought by parties who have been personally injured by the operation of a law
or any other government act but by concerned citizens, taxpayers or voters who actually sue in
the public interest." But even if, strictly speaking, the petitioners "are not covered by the
definition, it is still within the wide discretion of the Court to waive the requirement and so
remove the impediment to its addressing and resolving the serious constitutional questions
raised."64

Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe
for adjudication, considering that although the selection process commenced by the JBC is going
on, there is yet no final list of nominees; hence, there is no imminent controversy as to whether
such list must be submitted to the incumbent President, or reserved for submission to the
incoming President.

Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial
determination, pointing out that petitioner De Castro has not even shown that the JBC has
already completed its selection process and is now ready to submit the list to the incumbent
President; and that petitioner De Castro is merely presenting a hypothetical scenario that is
clearly not sufficient for the Court to exercise its power of judicial review.

Intervenors Corvera and Lim separately opine that De Castro's petition rests on an overbroad and
vague allegation of political tension, which is insufficient basis for the Court to exercise its
power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on
what the JBC and the President should do, and are not invoking any issues that are justiciable in
nature.

Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of
opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken
by the JBC, but simply avers that the conditional manifestations of two Members of the Court,
accented by the divided opinions and interpretations of legal experts, or associations of lawyers
and law students on the issues published in the daily newspapers are "matters of paramount and
transcendental importance to the bench, bar and general public"; that PHILCONSA fails not only
to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific
action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a
controversy or conflict of rights, but, instead, prays that the Court should "rule for the guidance
of" the JBC; that the fact that the Court supervises the JBC does not automatically imply that the
Court can rule on the issues presented in the Mendoza petition, because supervision involves
oversight, which means that the subordinate officer or body must first act, and if such action is
not in accordance with prescribed rules, then, and only then, may the person exercising oversight
order the action to be redone to conform to the prescribed rules; that the Mendoza petition does
not allege that the JBC has performed a specific act susceptible to correction for being illegal or
unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to
exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the
law in the absence of an actual case or controversy.

We hold that the petitions set forth an actual case or controversy that is ripe for judicial
determination. The reality is that the JBC already commenced the proceedings for the selection
of the nominees to be included in a short list to be submitted to the President for consideration of
which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is
not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the list of nominees to the incumbent
outgoing President or to the next President, makes the situation ripe for judicial determination,
because the next steps are the public interview of the candidates, the preparation of the short list
of candidates, and the "interview of constitutional experts, as may be needed."

A part of the question to be reviewed by the Court is whether the JBC properly initiated the
process, there being an insistence from some of the oppositors-intervenors that the JBC could
only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of
course, whether the JBC may resume its process until the short list is prepared, in view of the
provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one
from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an
Associate Justice) within 90 days from the occurrence of the vacancy.

The ripeness of the controversy for judicial determination may not be doubted. The challenges to
the authority of the JBC to open the process of nomination and to continue the process until the
submission of the list of nominees; the insistence of some of the petitioners to compel the JBC
through mandamus to submit the short list to the incumbent President; the counter-insistence of
the intervenors to prohibit the JBC from submitting the short list to the incumbent President on
the ground that said list should be submitted instead to the next President; the strong position that
the incumbent President is already prohibited under Section 15, Article VII from making any
appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and
the contrary position that the incumbent President is not so prohibited are only some of the real
issues for determination. All such issues establish the ripeness of the controversy, considering
that for some the short list must be submitted before the vacancy actually occurs by May 17,
2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution
of the controversy will surely settle - with finality - the nagging questions that are preventing the
JBC from moving on with the process that it already began, or that are reasons persuading the
JBC to desist from the rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal
issue to ripe for judicial determination by the Court. It is enough that one alleges conduct
arguably affected with a constitutional interest, but seemingly proscribed by the Constitution. A
reasonable certainty of the occurrence of the perceived threat to a constitutional interest is
sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before
it to enable it to intelligently adjudicate the issues.65 Herein, the facts are not in doubt, for only
legal issues remain.

Substantive Merits

Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the
Supreme Court or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:

Section 15. Two months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting,
submit that the incumbent President can appoint the successor of Chief Justice Puno upon his
retirement on May 17, 2010, on the ground that the prohibition against presidential appointments
under Section 15, Article VII does not extend to appointments in the Judiciary.

The Court agrees with the submission.

First. The records of the deliberations of the Constitutional Commission reveal that the framers
devoted time to meticulously drafting, styling, and arranging the Constitution. Such
meticulousness indicates that the organization and arrangement of the provisions of the
Constitution were not arbitrarily or whimsically done by the framers, but purposely made to
reflect their intention and manifest their vision of what the Constitution should contain.

The Constitution consists of 18 Articles, three of which embody the allocation of the awesome
powers of government among the three great departments, the Legislative (Article VI), the
Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true
recognition of the principle of separation of powers that underlies the political structure, as
Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained
in his sponsorship speech:

We have in the political part of this Constitution opted for the separation of powers in
government because we believe that the only way to protect freedom and liberty is to separate
and divide the awesome powers of government. Hence, we return to the separation of powers
doctrine and the legislative, executive and judicial departments.66

As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists
the powers vested by the Constitution in the President. The presidential power of appointment is
dealt with in Sections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of
Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the
provisions specifically providing for the appointment of Supreme Court Justices. In particular,
Section 9 states that the appointment of Supreme Court Justices can only be made by the
President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the
Article mandates the President to fill the vacancy within 90 days from the occurrence of the
vacancy.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could
not have ignored the meticulous ordering of the provisions. They would have easily and surely
written the prohibition made explicit in Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition against the
President or Acting President making appointments within two months before the next
presidential elections and up to the end of the President's or Acting President's term does not
refer to the Members of the Supreme Court.

Although Valenzuela67 came to hold that the prohibition covered even judicial appointments, it
cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior
Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional
Commission, about the prohibition not being intended to apply to the appointments to the
Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.

Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1),
Article VIII, viz:

V. Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that the original
proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted
to increase the number of Justices to fifteen. He also wished to ensure that that number would not
be reduced for any appreciable length of time (even only temporarily), and to this end proposed
that any vacancy "must be filled within two months from the date that the vacancy occurs." His
proposal to have a 15-member Court was not initially adopted. Persisting however in his desire
to make certain that the size of the Court would not be decreased for any substantial period as a
result of vacancies, Lerum proposed the insertion in the provision (anent the Court's
membership) of the same mandate that "IN CASE OF ANY VACANCY, THE SAME SHALL
BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He later agreed to
suggestions to make the period three, instead of two, months. As thus amended, the proposal was
approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member
Court. Thus it was that the section fixing the composition of the Supreme Court came to include
a command to fill up any vacancy therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that any "vacancy shall be filled
within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition in Section 15, Article VII, which is couched in stronger negative language - that "a
President or Acting President shall not make appointments…"
The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a
Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph:
"WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of
nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to
provide a "uniform rule" for lower courts. According to him, the 90-day period should be
counted from submission of the list of nominees to the President in view of the possibility that
the President might reject the list submitted to him and the JBC thus need more time to submit a
new one.

On the other hand, Section 15, Article VII - which in effect deprives the President of his
appointing power "two months immediately before the next presidential elections up to the end
of his term" - was approved without discussion.68

However, the reference to the records of the Constitutional Commission did not advance or
support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of
the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum,
"a command [to the President] to fill up any vacancy therein within 90 days from its occurrence,"
which even Valenzuela conceded.69 The exchanges during deliberations of the Constitutional
Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court
within the 90-day period was a true mandate for the President, viz:

MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the
Chief Justice, are only 11.

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection reads: "Any vacancy shall be
filled within ninety days from the occurrence thereof."

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?

MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom
has the Court had a complete complement.70

Moreover, the usage in Section 4(1), Article VIII of the word shall - an imperative, operating to
impose a duty that may be enforced71 - should not be disregarded. Thereby, Sections 4(1)
imposes on the President the imperative duty to make an appointment of a Member of the
Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President
to do so will be a clear disobedience to the Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in
the Supreme Court was undoubtedly a special provision to establish a definite mandate for the
President as the appointing power, and cannot be defeated by mere judicial interpretation in
Valenzuela to the effect that Section 15, Article VII prevailed because it was "couched in
stronger negative language." Such interpretation even turned out to be conjectural, in light of the
records of the Constitutional Commission's deliberations on Section 4 (1), Article VIII.

How Valenzuela justified its pronouncement and result is hardly warranted. According to an
authority on statutory construction:72

xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to
harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute,
or any other writing for that matter, which may not in some manner contain conflicting
provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter.
Undoubtedly, each provision was inserted for a definite reason. Often by considering the
enactment in its entirety, what appears to be on its face a conflict may be cleared up and the
provisions reconciled.

Consequently, that construction which will leave every word operative will be favored over one
which leaves some word or provision meaningless because of inconsistency. But a word should
not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature.
On the other hand, if full effect cannot be given to the words of a statute, they must be made
effective as far as possible. Nor should the provisions of a statute which are inconsistent be
harmonized at a sacrifice of the legislative intention. It may be that two provisions are
irreconcilable; if so, the one which expresses the intent of the law-makers should control. And
the arbitrary rule has been frequently announced that where there is an irreconcilable conflict
between the different provisions of a statute, the provision last in order of position will prevail,
since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved
criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists
between different sections of the same act, and after all other means of ascertaining the meaning
of the legislature have been exhausted. Where the conflict is between two statutes, more may be
said in favor of the rule's application, largely because of the principle of implied repeal.

In this connection, PHILCONSA's urging of a revisit and a review of Valenzuela is timely and
appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission
to have Section 4 (1), Article VIII stand independently of any other provision, least of all one
found in Article VII. It further ignored that the two provisions had no irreconcilable conflict,
regardless of Section 15, Article VII being couched in the negative. As judges, we are not to
unduly interpret, and should not accept an interpretation that defeats the intent of the framers.73

Consequently, prohibiting the incumbent President from appointing a Chief Justice on the
premise that Section 15, Article VII extends to appointments in the Judiciary cannot be
sustained. A misinterpretation like Valenzuela should not be allowed to last after its false
premises have been exposed.74 It will not do to merely distinguish Valenzuela from these cases,
for the result to be reached herein is entirely incompatible with what Valenzuela decreed.
Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and
forgettable.

We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.

There is no question that one of the reasons underlying the adoption of Section 15 as part of
Article VII was to eliminate midnight appointments from being made by an outgoing Chief
Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo.75
In fact, in Valenzuela, the Court so observed, stating that:

xxx it appears that Section 15, Article VII is directed against two types of appointments: (1)
those made for buying votes and (2) those made for partisan considerations. The first refers to
those appointments made within the two months preceding a Presidential election and are similar
to those which are declared election offenses in the Omnibus Election Code, viz.:

xxx

The second type of appointments prohibited by Section 15, Article VII consists of the so-called
"midnight" appointments. In Aytona v. Castillo, it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in
his bid for reelection, became no more than a "caretaker" administrator whose duty was to
"prepare for the orderly transfer of authority to the incoming President." Said the Court:

"The filling up of vacancies in important positions, if few, and so spaced as to afford some
assurance of deliberate action and careful consideration of the need for the appointment and
appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments
in one night and the planned induction of almost all of them in a few hours before the
inauguration of the new President may, with some reason, be regarded by the latter as an abuse
of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all
vacant positions irrespective of fitness and other conditions, and thereby to deprive the new
administration of an opportunity to make the corresponding appointments."

As indicated, the Court recognized that there may well be appointments to important positions
which have to be made even after the proclamation of the new President. Such appointments, so
long as they are "few and so spaced as to afford some assurance of deliberate action and careful
consideration of the need for the appointment and the appointee's qualifications," can be made by
the outgoing President. Accordingly, several appointments made by President Garcia, which
were shown to have been well considered, were upheld.

Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be
deemed to contemplate not only "midnight" appointments - those made obviously for partisan
reasons as shown by their number and the time of their making - but also appointments presumed
made for the purpose of influencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article VII - allowing appointments
to be made during the period of the ban therein provided - is much narrower than that recognized
in Aytona. The exception allows only the making of temporary appointments to executive
positions when continued vacancies will prejudice public service or endanger public safety.
Obviously, the article greatly restricts the appointing power of the President during the period of
the ban.

Considering the respective reasons for the time frames for filling vacancies in the courts and the
restriction on the President's power of appointment, it is this Court's view that, as a general
proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of
vote-buying and similar evils outweighs the need for avoiding delays in filling up of court
vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban
which, incidentally and as earlier pointed out, comes to exist only once in every six years.
Moreover, those occurring in the lower courts can be filled temporarily by designation. But
prohibited appointments are long-lasting and permanent in their effects. They may, as earlier
pointed out, in fact influence the results of elections and, for that reason, their making is
considered an election offense.76

Given the background and rationale for the prohibition in Section 15, Article VII, we have no
doubt that the Constitutional Commission confined the prohibition to appointments made in the
Executive Department. The framers did not need to extend the prohibition to appointments in the
Judiciary, because their establishment of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the unhurried and deliberate prior process of the
JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and with irregularities, or made by an
outgoing Chief Executive in the last days of his administration out of a desire to subvert the
policies of the incoming President or for partisanship,77 the appointments to the Judiciary made
after the establishment of the JBC would not be suffering from such defects because of the JBC's
prior processing of candidates. Indeed, it is axiomatic in statutory construction that the
ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or
meaning of the enactment, because the reason for the enactment must necessarily shed
considerable light on "the law of the statute," i.e., the intent; hence, the enactment should be
construed with reference to its intended scope and purpose, and the court should seek to carry out
this purpose rather than to defeat it.78

Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be
made for the purpose of buying votes in a coming presidential election, or of satisfying partisan
considerations. The experience from the time of the establishment of the JBC shows that even
candidates for judicial positions at any level backed by people influential with the President
could not always be assured of being recommended for the consideration of the President,
because they first had to undergo the vetting of the JBC and pass muster there. Indeed, the
creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the
intervention of the Commission on Appointments. This insulating process was absent from the
Aytona midnight appointment.

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the
Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met
on March 9, 1998 to discuss the question raised by some sectors about the "constitutionality of
xxx appointments" to the Court of Appeals in light of the forthcoming presidential elections. He
assured that "on the basis of the (Constitutional) Commission's records, the election ban had no
application to appointments to the Court of Appeals."79 This confirmation was accepted by the
JBC, which then submitted to the President for consideration the nominations for the eight
vacancies in the Court of Appeals.80

The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation
of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the
intent of the framers rather than on the deliberations of the Constitutional Commission. Much of
the unfounded doubt about the President's power to appoint during the period of prohibition in
Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998,
had Valenzuela properly acknowledged and relied on the confirmation of a distinguished
member of the Constitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16)
concern the appointing powers of the President.

Section 14 speaks of the power of the succeeding President to revoke appointments made by an
Acting President,81 and evidently refers only to appointments in the Executive Department. It has
no application to appointments in the Judiciary, because temporary or acting appointments can
only undermine the independence of the Judiciary due to their being revocable at will.82 The
letter and spirit of the Constitution safeguard that independence. Also, there is no law in the
books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory
retirement or resignation, judges of the first and second level courts and the Justices of the third
level courts may only be removed for cause, but the Members of the Supreme Court may be
removed only by impeachment.

Section 16 covers only the presidential appointments that require confirmation by the
Commission on Appointments. Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on Appointments after the requirement was
removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored
requirement did not include appointments to the Judiciary.83

Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the
power of the President to appoint. The fact that Section 14 and Section 16 refer only to
appointments within the Executive Department renders conclusive that Section 15 also applies
only to the Executive Department. This conclusion is consistent with the rule that every part of
the statute must be interpreted with reference to the context, i.e. that every part must be
considered together with the other parts, and kept subservient to the general intent of the whole
enactment.84 It is absurd to assume that the framers deliberately situated Section 15 between
Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential
appointments. If that was their intention in respect of appointments to the Judiciary, the framers,
if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII,
most likely within Section 4 (1) thereof.

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the
Judiciary further undermines the intent of the Constitution of ensuring the independence of the
Judicial Department from the Executive and Legislative Departments. Such a holding will tie the
Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the
Presidency in a presidential election. Consequently, the wisdom of having the new President,
instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and
cannot ensure judicial independence, because the appointee can also become beholden to the
appointing authority. In contrast, the appointment by the incumbent President does not run the
same risk of compromising judicial independence, precisely because her term will end by June
30, 2010.

Sixth. The argument has been raised to the effect that there will be no need for the incumbent
President to appoint during the prohibition period the successor of Chief Justice Puno within the
context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90
days mandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming vacancy occurring from Chief
Justice Puno's retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every
situation of a vacancy in the Supreme Court.

The argument also rests on the fallacious assumption that there will still be time remaining in the
90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG
has shown in its comment.

Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May,
letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular
presidential elections are held on May 8, the period of the prohibition is 115 days. If such
elections are held on May 14, the period of the prohibition is 109 days. Either period of the
prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme
Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest
possible period of the ban of 109 days and the 90-day mandatory period for appointments) in
which the outgoing President would be in no position to comply with the constitutional duty to
fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution
could not have intended such an absurdity. In fact, in their deliberations on the mandatory period
for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers
neither discussed, nor mentioned, nor referred to the ban against midnight appointments under
Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to,
because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court,
or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list
is necessary at all for the President - any President - to appoint a Chief Justice if the appointee is
to come from the ranks of the sitting justices of the Supreme Court.

Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at
least three nominees prepared by the Judicial and Bar Council for any vacancy. Such
appointments need no confirmation.
 xxx

The provision clearly refers to an appointee coming into the Supreme Court from the outside,
that is, a non-member of the Court aspiring to become one. It speaks of candidates for the
Supreme Court, not of those who are already members or sitting justices of the Court, all of
whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?

The question is not squarely before us at the moment, but it should lend itself to a deeper
analysis if and when circumstances permit. It should be a good issue for the proposed
Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile's
statement that the President can appoint the Chief Justice from among the sitting justices of the
Court even without a JBC list.

II

The Judiciary Act of 1948

The posture has been taken that no urgency exists for the President to appoint the successor of
Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of
having the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. - In case of a vacancy in the office of Chief
Justice of the Supreme Court or of his inability to perform the duties and powers of his office,
they shall devolve upon the Associate Justice who is first in precedence, until such disability is
removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to
every Associate Justice who succeeds to the office of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief
Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either
of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon
the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the
disability is removed.

Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court
has hereby resolved the question of consequence, we do not find it amiss to confront the matter
now.

We cannot agree with the posture.

A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a
Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list of
at least three nominees prepared by the JBC for every vacancy, which appointments require no
confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she
is appointed by the President as Chief Justice, and the appointment is never in an acting capacity.
The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting
Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply
written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948
in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the
plain intent of the Constitution.

For sure, the framers intended the position of Chief Justice to be permanent, not one to be
occupied in an acting or temporary capacity. In relation to the scheme of things under the present
Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which
the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to
perform the duties and powers of the office. It ought to be remembered, however, that it was
enacted because the Chief Justice appointed under the 1935 Constitution was subject to the
confirmation of the Commission on Appointments, and the confirmation process might take
longer than expected.

The appointment of the next Chief Justice by the incumbent President is preferable to having the
Associate Justice who is first in precedence take over. Under the Constitution, the heads of the
Legislative and Executive Departments are popularly elected, and whoever are elected and
proclaimed at once become the leaders of their respective Departments. However, the lack of any
appointed occupant of the office of Chief Justice harms the independence of the Judiciary,
because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions
absolutely significant to the life of the nation. With the entire Supreme Court being the
Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no
obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the
incumbent President to make within the 90-day period from May 17, 2010, there is no
justification to insist that the successor of Chief Justice Puno be appointed by the next President.

Historically, under the present Constitution, there has been no wide gap between the retirement
and the resignation of an incumbent Chief Justice, on one hand, and the appointment to and
assumption of office of his successor, on the other hand. As summarized in the comment of the
OSG, the chronology of succession is as follows:

1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro
Yap was appointed on the same day;

2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was
appointed on the same day;

3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres
Narvasa was appointed the following day, December 8, 1991;

4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario
Davide, Jr. was sworn into office the following early morning of November 30, 1998;
 5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio
Panganiban was appointed the next day, December 20, 2005; and

6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S.
Puno took his oath as Chief Justice at midnight of December 6, 2006.85

III

Writ of mandamus does not lie against the JBC

May the JBC be compelled to submit the list of nominees to the President?

Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act that the law specifically enjoins as a duty resulting from an
office, trust, or station.86 It is proper when the act against which it is directed is one addressed to
the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a
judgment or discretion in a particular way.87

For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear
legal right to the act demanded; (b) it must be the duty of the defendant to perform the act,
because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty
enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no
appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three
nominees to the President for every vacancy in the Judiciary:

Section 8. xxx

(5) The Council shall have the principal function of recommending appointees to the
Judiciary. xxx

Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by
the President from a list of at least three nominees prepared by the Judicial and Bar Council
for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the
submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in
the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from
the submission of the list, in the case of the lower courts. The 90-day period is directed at the
President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill
the vacancy in the Supreme Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the President the list of
nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one
of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion
to submit the list to the President after the vacancy occurs, because that shortens the 90-day
period allowed by the Constitution for the President to make the appointment. For the JBC to do
so will be unconscionable on its part, considering that it will thereby effectively and illegally
deprive the President of the ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC before making the appointment.

The duty of the JBC to submit a list of nominees before the start of the President's mandatory 90-
day period to appoint is ministerial, but its selection of the candidates whose names will be in the
list to be submitted to the President lies within the discretion of the JBC. The object of the
petitions for mandamus herein should only refer to the duty to submit to the President the list of
nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of
duty, there must be an unjustified delay in performing that duty.88 For mandamus to lie against
the JBC, therefore, there should be an unexplained delay on its part in recommending nominees
to the Judiciary, that is, in submitting the list to the President.

The distinction between a ministerial act and a discretionary one has been delineated in the
following manner:

The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of facts,
in a prescribed manner, in obedience to the mandate of a legal authority, without regard to
or the exercise of his own judgment upon the propriety or impropriety of the act done. If
the law imposes a duty upon a public officer and gives him the right to decide how or when
the duty shall be performed, such duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same requires neither the exercise of official
discretion or judgment.89

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a
writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear
that the JBC still has until May 17, 2010, at the latest, within which to submit the list of
nominees to the President to fill the vacancy created by the compulsory retirement of Chief
Justice Puno.

IV

Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can
appoint the Chief Justice. Hence, Soriano's petition for prohibition in G.R. No. 191032, which
proposes to prevent the JBC from intervening in the process of nominating the successor of
Chief Justice Puno, lacks merit.
On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit.
The challenge mounted against the composition of the JBC based on the allegedly
unconstitutional allocation of a vote each to the ex officio members from the Senate and the
House of Representatives, thereby prejudicing the chances of some candidates for nomination by
raising the minimum number of votes required in accordance with the rules of the JBC, is not
based on the petitioners' actual interest, because they have not alleged in their petition that they
were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack
locus standi on that issue.

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No.
191149, and the petition for mandamus in G.R. No. 191057 for being premature;

2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for
lack of merit; and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and
Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy
to be created by the compulsory retirement of Chief Justice Reynato S. Puno by
May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the
position of Chief Justice on or before May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill other
vacancies in the Judiciary and submit to the President the short list of nominees
corresponding thereto in accordance with this decision.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 127325 March 19, 1997

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

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG
DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is the right of the people to
directly propose amendments to the Constitution through the system of initiative under Section 2 of Article XVII of the 1987 Constitution.
Undoubtedly, this demands special attention, as this system of initiative was unknown to the people of this country, except perhaps to a few
scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original proponent1 and the
main sponsor2 of the proposed Article on Amendments or Revision of the Constitution, characterized this system as "innovative".3 Indeed it
is, for both under the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional convention.4 For this and the
other reasons hereafter discussed, we resolved to give due course to this petition.

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

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

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

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and volunteers, in
establishing signing stations at the time and on the dates designated for the purpose.

Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative,6 a group of citizens desirous to avail of the
system intended to institutionalize people power; that he and the members of the Movement and other volunteers intend to exercise the
power to directly propose amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the exercise of that
power shall be conducted in proceedings under the control and supervision of the COMELEC; that, as required in COMELEC Resolution No.
2300, signature stations shall be established all over the country, with the assistance of municipal election registrars, who shall verify the
signatures affixed by individual signatories; that before the Movement and other volunteers can gather signatures, it is necessary that the
time and dates to be designated for the purpose be first fixed in an order to be issued by the COMELEC; and that to adequately inform the
people of the electoral process involved, it is likewise necessary that the said order, as well as the Petition on which the signatures shall be
affixed, be published in newspapers of general and local circulation, under the control and supervision of the COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article VI,7 Section 4 of Article VII,8 and
Section 8 of Article X9 of the Constitution. Attached to the petition is a copy of a "Petition for Initiative on the 1987 Constitution" 10
embodying the proposed amendments which consist in the deletion from the aforecited sections of the provisions concerning term limits, and
with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING
FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF
ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by at least twelve per cent of the
total number of registered voters in the country it will be formally filed with the COMELEC.

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

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

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

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

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

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

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

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

(5) The people's initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of
term limits constitutes a revision and is, therefore, outside the power of the people's initiative.

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

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

On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible period of ten days from
notice; and (b) issued a temporary restraining order, effective immediately and continuing until further orders, enjoining public respondent
COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a signature drive
for people's initiative to amend the Constitution.

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

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

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC GRANTS
THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE
ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND
EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE
SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY
DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;

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

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

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735
WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF
SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE
COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY
PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS."

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISION DELEGATING
TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE
NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX
E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER
THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT.
"AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE
CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL.
CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).

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

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

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

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

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

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

In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor General contends that:
 (1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its Section 2 on Statement of
Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution and defines the same as the power to propose amendments to the
Constitution. Likewise, its Section 5 repeatedly mentions initiative on the Constitution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention of Senator Roco, DIK
and MABINI, and IBP. 23 The parties thereafter filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.

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

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

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

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

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

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

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

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

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

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

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

II

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

Section 2 of Article XVII of the Constitution provides:

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

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

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

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

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

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

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

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

(b) by a constitutional convention; or

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

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

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

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

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

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

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

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no
details in the provision on how to carry this out. Do we understand, therefore, that we are leaving
this matter to the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not
pass the necessary implementing law on this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee hearing, especially with
respect to the budget appropriations which would have to be legislated so that the plebiscite
could be called. We deemed it best that this matter be left to the legislature. The Gentleman is
right. In any event, as envisioned, no amendment through the power of initiative can be called
until after five years from the date of the ratification of this Constitution. Therefore, the first
amendment that could be proposed through the exercise of this initiative power would be after
five years. It is reasonably expected that within that five-year period, the National Assembly can
come up with the appropriate rules governing the exercise of this power.
 FR. BERNAS. Since the matter is left to the legislature — the details on how this is to be carried
out — is it possible that, in effect, what will be presented to the people for ratification is the work
of the legislature rather than of the people? Does this provision exclude that possibility?

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

xxx xxx xxx

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

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

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

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

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

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a
separate article in the constitution that would specifically cover the process and the modes of
amending the Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again
concede to the legislature the process or the requirement of determining the mechanics of
amending the Constitution by people's initiative?

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

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

MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of initiative, which
came about because of the extraordinary developments this year, has to be separated from the
traditional modes of amending the Constitution as embodied in Section 1. The committee
members felt that this system of initiative should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision. 34

xxx xxx xxx

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

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and should not expand into a revision which
 contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the
Committee.

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

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

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

MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the
following:

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

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

MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the
sense contained in Section 2 of our completed Committee Report No. 7, we accept the proposed
amendment. 36

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

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set
forth certain procedures to carry out the initiative. . .?

MR. DAVIDE. It can.

xxx xxx xxx

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

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular
right would be subject to legislation, provided the legislature cannot determine anymore the
percentage of the requirement.

MR. ROMULO. But the procedures, including the determination of the proper form for submission
to the people, may be subject to legislation.

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

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed
be legislated?

MR. DAVIDE. Yes. 37

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

MR. DAVIDE. With pleasure, Madam President.

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

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

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision."
38

Commissioner Davide further emphasized that the process of proposing amendments through initiative must be more rigorous and difficult
than the initiative on legislation. Thus:

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

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

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows:
"AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF
THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED
VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED
WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE

FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40

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

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

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

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

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

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

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

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

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

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

A careful scrutiny of the Act yields a negative answer.

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

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

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

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

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

(c) The petition shall state the following:

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

c.2 the proposition;

c.3 the reason or reasons therefor;

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

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

c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly written or
printed at the top of every page of the petition. (Emphasis supplied).
 The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed" only strengthens the
conclusion that Section 2, quoted earlier, excludes initiative on amendments to the Constitution.

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

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

Sec. 3. Definition of terms —

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(d) The formulation of the proposition;

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

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

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

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

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

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

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. 56

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

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

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

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

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

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

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

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

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

III

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

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

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN
PETITION.

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

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

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

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

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

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation
of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be
given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for
the implementation of the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

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

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

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

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

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

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

Padilla, J., took no part.

Self Executing Statutes

MANILA PRINCE HOTEL VS. GSIS

G.R. NO. 122156. February 3, 1997

MANILA PRINCE HOTEL petitioner,

vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
Facts:

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant
to the privatization program of the Philippine Government, decided to sell through public
bidding 30% to 51% of the issued and outstanding shares of respondent Manila Hotel
Corporation (MHC). The winning bidder, or the eventual “strategic partner,” will provide
management expertise or an international marketing/reservation system, and financial support to
strengthen the profitability and performance of the Manila Hotel.

In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner
Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC
or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-
Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share, or
P2.42 more than the bid of petitioner. Prior to the declaration of Renong Berhard as the winning
bidder, petitioner Manila Prince Hotel matched the bid price and sent a manager’s check as bid
security, which GSIS refused to accept.

Apprehensive that GSIS has disregarded the tender of the matching bid and that the sale may be
consummated with Renong Berhad, petitioner filed a petition before the Court.

Issues:

1. Whether or not Sec. 10, second par., Art. XII, of the 1987 Constitution is a self-executing
provision.
2. Whether or not the Manila Hotel forms part of the national patrimony.
3. Whether or not the submission of matching bid is premature
4. Whether or not there was grave abuse of discretion on the part of the respondents in
refusing the matching bid of the petitioner.

Rulings:

In the resolution of the case, the Court held that:

1. It is a self-executing provision.
1. Since the Constitution is the fundamental, paramount and supreme law of the
nation, it is deemed written in every statute and contract. A provision which lays
down a general principle, such as those found in Art. II of the 1987 Constitution,
is usually not self-executing. But a provision which is complete in itself and
becomes operative without the aid of supplementary or enabling legislation, or
 that which supplies sufficient rule by means of which the right it grants may be
enjoyed or protected, is self-executing.
2. A constitutional provision is self-executing if the nature and extent of the right
conferred and the liability imposed are fixed by the constitution itself, so that they
can be determined by an examination and construction of its terms, and there is no
language indicating that the subject is referred to the legislature for action. Unless
it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the
constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law.
3. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very words the provision
does not require any legislation to put it in operation. It is per se judicially
enforceable. When our Constitution mandates that in the grant of rights,
privileges, and concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that – qualified Filipinos
shall be preferred. And when our Constitution declares that a right exists in
certain specified circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject; consequently, if
there is no statute especially enacted to enforce such constitutional right, such
right enforces itself by its own inherent potency and puissance, and from which
all legislations must take their bearings. Where there is a right there is a remedy.
Ubi jus ibi remedium.
2. The Court agree.
1. In its plain and ordinary meaning, the term patrimony pertains to heritage. When
the Constitution speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very well used the
term natural resources, but also to the cultural heritage of the Filipinos.
2. It also refers to Filipino’s intelligence in arts, sciences and letters. In the present
case, Manila Hotel has become a landmark, a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in
1912, a concourse for the elite, it has since then become the venue of various
significant events which have shaped Philippine history.
3. Verily, Manila Hotel has become part of our national economy and patrimony.
For sure, 51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock, so that
anyone who acquires or owns the 51% will have actual control and management
of the hotel. In this instance, 51% of the MHC cannot be disassociated from the
hotel and the land on which the hotel edifice stands.
3. It is not premature.
1. In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering the
national economy and patrimony, thereby exceeding the bid of a Filipino, there is
no question that the Filipino will have to be allowed to match the bid of the
 foreign entity. And if the Filipino matches the bid of a foreign firm the award
should go to the Filipino. It must be so if the Court is to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while this may
neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it would be
to sanction a perilous skirting of the basic law.
2. The Court does not discount the apprehension that this policy may discourage
foreign investors. But the Constitution and laws of the Philippines are understood
to be always open to public scrutiny. These are given factors which investors must
consider when venturing into business in a foreign jurisdiction. Any person
therefore desiring to do business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum.
4. There was grave abuse of discretion.
1. To insist on selling the Manila Hotel to foreigners when there is a Filipino group
willing to match the bid of the foreign group is to insist that government be
treated as any other ordinary market player, and bound by its mistakes or gross
errors of judgement, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus, the Court would rather
remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down the
basic conditions and parameters for its actions.
2. Since petitioner has already matched the bid price tendered by Renong Berhad
pursuant to the bidding rules, respondent GSIS is left with no alternative but to
award to petitioner the block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as well. The refusal
of respondent GSIS to execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the bid of the Malaysian
firm clearly constitutes grave abuse of discretion.

Hence, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL

CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling
51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the
matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject
51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to execute
the necessary agreements and documents to effect the sale, to issue the necessary clearances and
to do such other acts and deeds as may be necessary for the purpose.
 Republic of the Philippines
Congress of the Philippines
Metro Manila

Fourteenth Congress
Second Regular Session

Begun and held in Metro Manila, on Monday, the twenty-eight day of July, two thousand eight.

Republic Act No. 9522 March 10, 2009

AN ACT TO AMEND CERTAIN PROVISIONS OF REPUBLIC ACT NO. 3046, AS

AMENDED BY REPUBLIC ACT NO. 5446, TO DEFINE THE ARCHIPELAGIC
BASELINE OF THE PHILIPPINES AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled::

Section 1. Section 1 of Republic Act No. 3046, entitled "An Act to Define the Baselines of the
Territorial Sea of the Philippines", as amended by Section 1 of Republic Act No. 5446, is hereby
amended to read as follows:

Section 1. The baselines of the Philippines archipelago are hereby defined and described
specifically as follows:

Basepoint Station Location World Geodetic System of 1984 Distance

Number Name (WGS 84) Coordinates to next
basepoint
Latitude (N) Longitude (E) (M)
1 PAB-01 Amianan Is. 21º6’57.73" 121º57’27.71" 70.08
2 PAB-02 Balintang Is. 19º57’38.19" 122º9’46.32" 99.17
3 PAB-04 Bigan Pt. 18º18’35.30" 122º20’19.07" 71.83
4 PAB-05A Ditolong Pt. 17º7’16.30" 122º31’28.34" 1.05
5 PAB-05B Ditolong Pt. 17º6’14.79" 122º31’43.84" 0.39
6 PAB-05 Ditolong Pt. 17º5’51.31" 122º31’42.66" 3.29
7 PAB-06 Spires Is. 17º2’36.91" 122º31’3.28" 9.74
8 PAB-06B Digollorin Pt. 16º59’18.03" 122º27’56.61" 3.51
9 PAB-06C Digollorin Rk. 16º49’56.11" 122º26’50.78" 2.40
10 PAB-07 Divimisa Pt. 16º47’38.86" 122º26’4.40" 30.94
11 PAB-08 Dinoban Pt. 16º18’44.33" 122º14’06.69" 116.26
12 PAB-10A Tinaga Is. 14º29’54.43" 122º57’51.15" 80.29
13 PAB-11 Horodaba Rk. 14º6.29.91" 124º16’59.21" 0.54
14 PAB-12 Matulin Rk. 14º6.10.40" 124º17’26.28" 96.04
15 PAB-13 Atalaya Pt. 12º41’6.37" 125º3’53.71" 6.79
16 PAB-13A Bacan Is. 12º36’18.41" 125º8’50.19" 5.52
17 PAB-14 Finch Rk. 12º32.33.62" 125º12’59.70" 0.80
18 PAB-14A Cube Rk. 12º31.57.45" 125º13’32.37" 4.90
19 PAB-14D NW Manjud Pt. 12º28’36.42" 125º17’12.32" 1.30
20 PAB-15 SE Manjud Pt. 12º27’37.51" 125º18’5.23" 7.09
21 PAB-16A S Sorz Cay 12º21’41.64" 125º23’7.41" 5.68
22 PAB-16B Panablihon 12º17’27.17" 125º27’0.12" 5.21
23 PAB-16C Alugon 12º13’21.95" 125º30’19.47" 1.94
24 PAB-16D N Bunga Pt. 12º11’48.16" 125º31’30.88" 0.54
25 PAB-17 E Bunga Pt. 12º11’20.67" 125º31’48.29" 5.71
26 PAB-18A SE Tobabao Is. 12º6’7.00" 125º34’11.94" 83.94
27 PAB-19C Suluan Is. 10º45’16.70" 125º58’8.78" 56.28
28 PAB-19D N Tuason Pt. 9º49’59.58" 126º10’6.39" 57.44
29 PAB-20A Arangasa Is. 8º53’16.62" 126º20’48.81" 40.69
30 PAB-21B Sanco Pt. 8º13’11.53" 126º28’53.25" 30.80
31 PAB-22 Bagoso Is 7º42’45.02" 126º34’29.08" 12.95
32 PAB-22C Languyan 7º29’49.47" 126º35’59.24" 0.54
33 PAB-23 Languyan 7º29’16.93" 126º35’59.50" 0.76
34 PAB-23B Languyan 7º28’30.97" 126º35’57.30" 1.2
35 PAB-23C N Baculin Pt. 7º27’29.42" 126º35’51.31" 10.12
36 PAB-24 Pusan Pt. 7º17’19.80" 126º36’18.26" 1.14
37 PAB-24A S Pusan Pt. 7º16’14.43" 126º35’57.20" 63.28
38 PAB-25B Cape San Agustin 6º17’14.73" 126º12’14.40" 1.28
39 PAB-25 Cape San Agustin 6º16’8.35" 126º11’35.06" 67.65
40 PAB-26 SE Sarangani Is. 5º23’34.20" 125º28’42.11" 0.43
41 PAB-27 Pangil Bato Pt. 5º23’21.80" 125º28’19.59" 3.44
42 PAB-28 Tapundo Pt. 6º21’55.66" 126º25’11.21" 3.31
43 PAB-29 W Calia Pt. 5º21’58.48" 125º21’52.03" 0.87
44 PAB-30 Manamil Is. 5º22’2.91" 125º20’59.73" 1.79
45 PAB-31 Marampog Pt. 5º23’20.18" 125º19’44.29" 78.42
46 PAB-32 Pola Pt. 6º9’8.44" 124º15’42.81" 122.88
47 PAB-33A Kantuan Is 6º26’47.22" 122º13.34.50" 29.44
48 PAB-34A Tongguil Is. 6º2’33.77" 121º56’36.20" 2.38
49 PAB-35 Tongquil Is 6º1’8.51" 121º54’41.45" 1.72
50 PAB-35A Tongquil Is. 6º0’17.88" 121º63’11.17" 85.94
51 PAB-38A Kirapusan Is 5º12.8.70" 120º41’38.14" 55.24
52 PAB-39 Manuk Manka Is. 4º47’39.24" 119º51’58.08" 43.44
53 PAB-40 Frances Reef 4º24’53.84" 119º14’50.71 0.61
54 PAB-40A Frances Reef 4º25’3.83" 119º14’15.15" 15.48
55 PAB-41A Bajapa Reef 4º36"9.01" 119º3’22.75" 6.88
56 PAB-42A Paguan Is. 4º42’52.07" 119º1’44.04" 8.40
57 PAB-43 Alice Reef 4º45’55.25" 119º3’15.19" 2.28
58 PAB-44 Alice Reef 4º47’5.36" 119º5’12.94" 18.60
59 PAB-45 Omapoy Rk. 4º55’10.45" 119º22’1.30 23.37
60 PAB-46 Bukut Lapis Pt. 5º2’23.73" 119º44’18.14" 44.20
61 PAB-47 Pearl Bank 5º46’35.15" 119º39’51.77" 75.17
62 PAB-48 Bagnan Is. 6º5’58.41" 118º26’57.30" 8.54
63 PAB-48A Taganak Is 6º4’14.08" 118º18’33.33" 13.46
64 PAB-49 Great Bakkungaan 6º11’4.65" 118º6’54.15" 3.97
Is.
65 PAB-50 Libiman Is. 6º13’39.90" 118º3’52.09" 5.53
66 PAB-51 Sibaung Is. 6º17’43.99" 118º0’5.44" 41.60
67 PAB-52 Muligi Is. 6º52’14.53" 118º23’40.49" 75.06
68 PAB-53 South Mangsee Is. 7º30’26.05" 117º18’33.75" 26.00
69 PAB-54 Balabac Is. 7º48’30.69" 116º59’39.18" 6.08
70 PAB-54A Balabac Great Reef 7º51’27.17" 116º54’17.19" 1.18
71 PAB-54B Balabac Great Reef 7º52’19.86" 116º53’28.73" 2.27
72 PAB-55 Balabac Great Reef 7º54’36.35" 116º53’16.64" 5.42
73 PAB-60 Ada Reef 8º2’0.26" 116º54’10.04" 10.85
74 PAB.61 Secam Is. 8º11’18.36" 116º59’51.87" 30.88
75 PAB-62 Latua Pt. 8º87’56.37" 117º15’51.23" 7.91
76 PAB-63 SW Tatub Pt. 8º44’17.40" 117º20’39.37" 11.89
77 PAB-63A W Sicud Pt. 8º53’32.20" 117º28’15.78" 13.20
78 PAB-64 Tarumpitao Pt. 9º2.57.47" 117º37’38.88" 81.12
79 PAB.64B Dry Is. 9º59’22.54" 118º36’53.61" 82.76
80 PAB-65C Sinangcolan Pt. 11º13’19.82" 119º15’17.74" 74.65
81 PAB-67 Pinnacle Rk. 12º19’35.22" 119º50’56.00 93.88
82 PAB-68 Cabra Is 13º53’24.45" 120º1’5.86" 115.69
83 PAB-71 Hermana Mayor Is. 15º48’43.61" 119º46’56.09" 9.30
84 PAB-72 Tambobo Pt. 15º57’61.67" 119º44’55.32" 12.06
85 PAB-72B Rena Pt. 16º9’57.90" 119º45.15.76" 0.25
86 PAB-73 Rena Pt. 16º10’12.42" 119º45’11.95" 6.43
87 PAB-74 Rocky Ledge 16º16’34.46" 119º46’19.50" 0.65
88 PAB-74A Piedra Pt. 16º37’12.70" 119º46’28.62" 1.30
89 PAB-75 Piedra Pt. 16º18’29.49" 119º46’44.94" 1.04
90 PAB-75C Piedra Pt. 16º19’28.20" 119º47’7.69" 0.63
91 PAB-75D Piedra Pt. 16º20’4.38" 119º47’20.48" 80.60
92 PAB-76 Dile Pt. 17º34’24.94" 120º20’33.36" 6.86
93 PAB-77 Pinget Is. 17º41’17.56" 120º21’2.20" 14.15
94 PAB-78 Baboc Is. 17º55’4.13" 120º24’40.56" 35.40
95 PAB-79 Cape Bojeador 18º29’32.42" 120º33’42.41" 1.77
 96 PAB-79B Bobon 18º30’52.88" 120º34’55.35" 58.23
97 PAB-80 Calagangan Pt. 19º10’14.78" 121º12’52.64" 98.07
98 PAB-82 Itbayat Is. 20º43’15.74" 121º46’57.80" 25.63
99 PAB-83 Amianan Is 21º7’17.47" 121º56’43.85" 0.08
100 PAB-84 Amianan Is. 21º7’18.41" 121º56’48.79" 0.25
101 PAB-85 Amianan Is. 21º7’12.04" 121º57’3.65" 0.44

Section 2. The baseline in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of
the Philippines consistent with Article 121 of the United Nations Convention on the Law of the
Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and

b) Bajo de Masinloc, also known as Scarborough Shoal.

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and
jurisdiction over all portions of the national territory as defined in the Constitution and by
provisions of applicable laws including, without limitation, Republic Act No. 7160, otherwise
known as the Local Government Code of 1991, as amended.

Section 4. This Act, together with the geographic coordinates and the chart and maps indicating
the aforesaid baselines, shall be deposited and registered with the Secretary General of the
United Nations.

Section 5. The National Mapping and Resource Information Authority (NAMRIA) shall
forthwith produce and publish charts and maps of the appropriate scale clearly representing the
delineation of basepoints and baselines as set forth in this Act.

Section 6. The amount necessary to carry out the provisions of this Act shall be provided in a
supplemental budyet or included in the General Appropriations Act of the year of its enactment
into law.

Section 7. If any portion or provision of this Act is declared unconstitutional or invalid the other
portions or provisions hereof which are not affected thereby shall continue to be in full force and
effect.

Section 8. The provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, and
all other laws, decrees, executive orders, rules and issuances inconsistent with this Act are
hereby amended or modified accordingly.

Section 9. This Act shall take effect fifteen (15) days following its publication in the Official
Gazette or in any two (2) newspaper of general circulation.
Approved

(Sgd.) PROSPERO C. (Sgd.) JUAN PONCE ENRILE

NOGRALES President of the Senate
Speaker of the House of
Representatives

This Act which is a consolidation of Senate Bill No. 2699 and House Bill No. 3216 was finally
passed by the Senate and the House of Representative on February 17, 2009.

(Sgd.) MARILYN B. BARUA- (Sgd.) EMMA LIRIO-REYES

YAP Secretary of Senate
Secretary General
House of Represenatives

Approved: MAR 10, 2009

(Sgd.) GLORIA MACAPAGAL-ARROYO

President of the Philippines

Archipelagic Doctrine

MAGALONA VS ERMITA

G.R. No. 187167 16Aug2011

Prof. Merlin Magalona, et al., Petitioners,

vs

Hon. Eduardo Ermita in his capacityas Executive Secretary, et al., Respondents.

Facts:

In March 2009, R.A. 9522 was enacted by the Congress to comply with the terms of the United
Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified on
February 27, 1984.

Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among
others, that the law decreased the national territory of the Philippines. Some of their particular
arguments are as follows:

1. RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine
state’s sovereign power, in violation of Article 1 of the 1987 Constitution, embodying the
terms of the Treaty of Paris and ancillary treaties.
2. RA 9522 opens the country’s waters landward of the baselines to maritime passage by all
vessels and aircrafts, undermining Philippine sovereignty and national security,
contravening the country’s nuclear-free policy, and damaging marine resources, in
violation of relevant constitutional provisions.
3. RA 9522’s treatmentof the KIG as “regime of islands” not only results in the loss of a
large maritime area but also prejudices the livelihood of subsistence fishermen.

Hence, petitioners files action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221 (RA 9522) adjusting the country’s archipelagic
baselines and classifying the baseline regime of nearby territories.

Issues:

Whether or not RA 9522, the amendatory Philippine Baseline Law is unconstitutional.

Discussions:

The provision of Art I 198 Constitution clearly affirms the archipelagic doctrine, which we
connect the outermost points of our archipelago with straight baselines and consider all the
waters enclosed thereby as internal waters. RA 9522, as a Statutory Tool to Demarcate the
Country’s Maritime Zones and Continental Shelf Under UNCLOS III, gave nothing less than an
explicit definition in congruent with the archipelagic doctrine.

Rulings:

No. The Court finds R.A. 9522 constitutional. It is a Statutory Tool to Demarcate the Country’s
Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory.
It is a vital step in safeguarding the country’s maritime zones. It also allows an internationally-
recognized delimitation of the breadth of the Philippine’s maritime zones and continental shelf.

Additionally, The Court finds that the conversion of internal waters into archipelagic waters will
not risk the Philippines as affirmed in the Article 49 of the UNCLOS III, an archipelagic State
has sovereign power that extends to the waters enclosed by the archipelagic baselines, regardless
of their depth or distance from the coast. It is further stated that the regime of archipelagic sea
lanes passage will not affect the status of its archipelagic waters or the exercise of sovereignty
over waters and air space, bed and subsoil and the resources therein.

The Court further stressed that the baseline laws are mere mechanisms for the UNCLOS III to
precisely describe the delimitations. It serves as a notice to the international family of states and
it is in no way affecting or producing any effect like enlargement or diminution of territories.

EN BANC

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES,
VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES
FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG
and ERNESTO B. FRANCISCO, JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million
Filipinos voted for the petitioner believing he would rescue them from life's adversity. Both
petitioner and the respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4,
2000. Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on
air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng
lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator
Teofisto Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery
privilege speech entitled "I Accuse." He accused the petitioner of receiving some P220 million in
jueteng money from Governor Singson from November 1998 to August 2000. He also charged
that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended
for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the
Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on
Justice (then headed by Senator Renato Cayetano) for joint investigation.2
The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor
Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael
Defensor spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime
Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese
of Manila, asking petitioner to step down from the presidency as he had lost the moral authority
to govern.3 Two days later or on October 13, the Catholic Bishops Conference of the Philippines
joined the cry for the resignation of the petitioner.4 Four days later, or on October 17, former
President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice"
of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on October
12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services6
and later asked for petitioner's resignation.7 However, petitioner strenuously held on to his office
and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November
3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November
20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators
took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief
Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza,
former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza,
Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered
by live TV and during its course enjoyed the highest viewing rating. Its high and low points were
the constant conversational piece of the chattering classes. The dramatic point of the December
hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank.
She testified that she was one foot away from petitioner Estrada when he affixed the signature
"Jose Velarde" on documents involving a P500 million investment agreement with their bank on
February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the
witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr.
Dante Tan who was facing charges of insider trading.16 Then came the fateful day of January 16,
when by a vote of 11-1017 the senator-judges ruled against the opening of the second envelope
which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank
account under the name "Jose Velarde." The public and private prosecutors walked out in protest
of the ruling. In disgust, Senator Pimentel resigned as Senate President.18 The ruling made at
10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By
midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were
delivered against the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19 Senator Raul Roco quickly moved for the indefinite postponement of
the impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-
kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's
solidarity in demanding petitioner's resignation. Students and teachers walked out of their classes
in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA
Shrine, all masters of the physics of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the
holding of a snap election for President where he would not be a candidate. It did not diffuse the
growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General
Reyes, together with the chiefs of all the armed services went to the EDSA Shrine.22 In the
presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000
strong members of the Armed Forces, we wish to announce that we are withdrawing our support
to this government."23 A little later, PNP Chief, Director General Panfilo Lacson and the major
service commanders gave a similar stunning announcement.24 Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.25
Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the
tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the
highly controversial second envelope.26 There was no turning back the tide. The tide had become
a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the
Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel
Fernandez, head of the Presidential Management Staff, negotiated for the petitioner. Respondent
Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance
Alberto Romulo and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a
brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-
throwing and caused minor injuries. The negotiations consumed all morning until the news broke
out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the
EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as
President of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang
Palace.29 He issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of
our country, I have strong and serious doubts about the legality and constitutionality of
her proclamation as President, I do not wish to be a factor that will prevent the restoration
of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I
leave the Palace of our people with gratitude for the opportunities given to me for service
to our people. I will not shirk from any future challenges that may come ahead in the
same service of our country.

I call on all my supporters and followers to join me in to promotion of a constructive

national spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:
 By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice-President shall be the Acting
President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23
Another copy was transmitted to Senate President Pimentel on the same day although it was
received only at 9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution
in Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to

Take her Oath of Office as President of the Republic of the Philippines before the Chief
Justice — Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be
sworn in as President of the Republic of the Philippines, addressed to the Chief Justice
and confirmed by a letter to the Court, dated January 20, 2001, which request was treated
as an administrative matter, the court Resolve unanimously to confirm the authority given
by the twelve (12) members of the Court then present to the Chief Justice on January 20,
2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as
President of the Philippines, at noon of January 20, 2001.

This resolution is without prejudice to the disposition of any justiciable case that may be
filed by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly
followed. On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats
recognized the government of respondent Arroyo.35 US President George W. Bush gave the
respondent a telephone call from the White House conveying US recognition of her
government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37 The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of
the House of Representatives to the assumption into office by Vice President Gloria Macapagal-
Arroyo as President of the Republic of the Philippines, extending its congratulations and
expressing its support for her administration as a partner in the attainment of the nation's goals
under the Constitution."39
On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days
later, she also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43 Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge
on the legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa
Aquino-Oreta and Robert Barbers were absent.44 The House of Representatives also approved
Senator Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as
Vice President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is
functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the
Senate had failed to decide on the impeachment case and that the resolution left open the
question of whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating
jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey
conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey
also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the
balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to
52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-
to-upper classes, 64% in the D or mass class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters.
Several cases previously filed against him in the Office of the Ombudsman were set in motion.
These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for
bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against
Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct, violation of the Code of Conduct for Government
Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation,
Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28,
2000 for malversation of public funds, illegal use of public funds and property, plunder, etc.; (5)
OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery,
plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB
Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft
and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to

investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the
panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his
witnesses as well as other supporting documents in answer to the aforementioned complaints
against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR
No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case
Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that
may be filed in his office, until after the term of petitioner as President is over and only if legally
warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo
Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge the duties of his
office, and declaring respondent to have taken her oath as and to be holding the Office of the
President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on
GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to
comment thereon within a non-extendible period expiring on 12 February 2001." On February
13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing
of the respondents' comments "on or before 8:00 a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused
themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked
the charge of counsel Saguisag that they have "compromised themselves by indicating that they
have thrown their weight on one side" but nonetheless inhibited themselves. Thereafter, the
parties were given the short period of five (5) days to file their memoranda and two (2) days to
submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under
pain of being cited for contempt to refrain from making any comment or discussing in
public the merits of the cases at bar while they are still pending decision by the Court,
and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his
office against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing
from news reports that the respondent Ombudsman may immediately resolve the cases
against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15,
2001, which action will make the cases at bar moot and academic."53
The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada
is a President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the

criminal prosecution of petitioner Estrada. In the negative and on the assumption that
petitioner is still President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of

prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress
that respondent Arroyo ascended the presidency through people power; that she has already
taken her oath as the 14th President of the Republic; that she has exercised the powers of the
presidency and that she has been recognized by foreign governments. They submit that these
realities on ground constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift
the shroud on political question but its exact latitude still splits the best of legal minds.
Developed by the courts in the 20th century, the political question doctrine which rests on the
principle of separation of powers and on prudential considerations, continue to be refined in the
mills of constitutional law.55 In the United States, the most authoritative guidelines to determine
whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case or
Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it,
or the impossibility of deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of government;
or an unusual need for unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements by various
departments on question. Unless one of these formulations is inextricable from the case at
bar, there should be no dismissal for non justiciability on the ground of a political
question's presence. The doctrine of which we treat is one of 'political questions', not of
'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a
firmer delineation of the inner and outer perimeters of a political question.57 Our leading case is
Tanada v. Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held
that 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." To a great degree, the
1987 Constitution has narrowed the reach of the political question doctrine when it expanded the
power of judicial review of this court not only to settle actual controversies involving rights
which are legally demandable and enforceable but also to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government.59 Heretofore, the judiciary has focused on the
"thou shalt not's" of the Constitution directed against the exercise of its jurisdiction.60 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. Prominent of these provisions is
section 18 of Article VII which empowers this Court in limpid language to "x x x review, in an
appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or
the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo,
they present a political question. A more cerebral reading of the cited cases will show that they
are inapplicable. In the cited cases, we held that the government of former President Aquino
was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less
than the Freedom Constitution63 declared that the Aquino government was installed through a
direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by
a successful revolution by people power is beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop. In checkered contrast, the government of
respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA
Shrine is the oath under the 1987 Constitution.64 In her oath, she categorically swore to
preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the
powers of the presidency under the authority of the 1987 Constitution.1âwphi1.nêt

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear.
EDSA I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and
the resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II
involves legal questions. A brief discourse on freedom of speech and of the freedom of
assembly to petition the government for redress of grievance which are the cutting edge of
EDSA People Power II is not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights
was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal,
raised the clarion call for the recognition of freedom of the press of the Filipinos and included it
as among "the reforms sine quibus non."65 The Malolos Constitution, which is the work of the
revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived
(1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the
press or other similar means; (2) of the right of association for purposes of human life and which
are not contrary to public means; and (3) of the right to send petitions to the authorities,
individually or collectively." These fundamental rights were preserved when the United
States acquired jurisdiction over the Philippines. In the Instruction to the Second Philippine
Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no
law shall be passed abridging the freedom of speech or of the press or of the rights of the people
to peaceably assemble and petition the Government for redress of grievances." The guaranty was
carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the
Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368
Constitution. These rights are now safely ensconced in section 4, Article III of the 1987
Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."
The indispensability of the people's freedom of speech and of assembly to democracy is now
self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a
means of assuring individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for participation in decision-
making by all members of society; and fourth, it is a method of achieving a more adaptable and
hence, a more stable community of maintaining the precarious balance between healthy cleavage
and necessary consensus."69 In this sense, freedom of speech and of assembly provides a
framework in which the "conflict necessary to the progress of a society can take place
without destroying the society."70 In Hague v. Committee for Industrial Organization,71 this
function of free speech and assembly was echoed in the amicus curiae filed by the Bill of Rights
Committee of the American Bar Association which emphasized that "the basis of the right of
assembly is the substitution of the expression of opinion and belief by talk rather than force;
and this means talk for all and by all."72 In the relatively recent case of Subayco v.
Sandiganbayan,73 this Court similar stressed that "… it should be clear even to those with
intellectual deficits that when the sovereign people assemble to petition for redress of grievances,
all should listen. For in a democracy, it is the people who count; those who are deaf to their
grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental
powers under section 1176 of Article VII. The issues likewise call for a ruling on the scope of
presidential immunity from suit. They also involve the correct calibration of the right of
petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the
doctrine has been laid down that "it is emphatically the province and duty of the judicial
department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of
political question is but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or
that he suffers from a permanent disability. Hence, he submits that the office of the President was
not vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution
which provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the
President and Vice President, the President of the Senate or, in case of his inability, the
 Speaker of the House of Representatives, shall then act as President until the President or
Vice President shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public.
Resignation is not a high level legal abstraction. It is a factual question and its elements are
beyond quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as
to form. It can be oral. It can be written. It can be express. It can be implied. As long as the
resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation
before he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-
taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be
determined from his act and omissions before, during and after January 20, 2001 or by the
totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing
a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to
follow the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon
Committee investigated. The more detailed revelations of petitioner's alleged misgovernance in
the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in
the House of Representatives which initially was given a near cipher chance of succeeding
snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of
the House of Representatives. Soon, petitioner's powerful political allies began deserting him.
Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and former
Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic
advisers resigned together with his Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of the impeachment
tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before
the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress
of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread
to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of
the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary
of Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary
reveals that in the morning of January 19, petitioner's loyal advisers were worried about the
swelling of the crowd at EDSA, hence, they decided to create an ad hoc committee to handle it.
Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office
at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes)
(Ed, this is serious. Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided
to call for a snap presidential election and stressed he would not be a candidate. The proposal
for a snap election for president in May where he would not be a candidate is an indicium
that petitioner had intended to give up the presidency even at that time. At 3:00 p.m.,
General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner
and dramatically announced the AFP's withdrawal of support from the petitioner and their pledge
of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president.
According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the
option of "dignified exit or resignation."81 Petitioner did not disagree but listened intently.82
The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the
petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener
by saying that petitioner would be allowed to go abroad with enough funds to support him and
his family.83 Significantly, the petitioner expressed no objection to the suggestion for a
graceful and dignified exit but said he would never leave the country.84 At 10:00 p.m.,
petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five
days to a week in the palace."85 This is proof that petitioner had reconciled himself to the reality
that he had to resign. His mind was already concerned with the five-day grace period he could
stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara
and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful
and orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily
agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly
transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of
January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition
period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and
his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner. 87
Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot
feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on
the three points and the following entry in the Angara Diary shows the reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this – it's
too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when
he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following
happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona.
For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will be
effective on Wednesday, 24 January 2001, on which day the Vice President will assume the
Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination with
the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function under the
Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of
the President and his family as approved by the national military and police authority (Vice
President).

5. It is to be noted that the Senate will open the second envelope in connection with the alleged
savings account of the President in the Equitable PCI Bank in accordance with the rules of the
Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake as
follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their person
and property throughout their natural lifetimes. Likewise, President Estrada and his families are
guarantee freedom from persecution or retaliation from government and the private sector
throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the
Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the subject
savings account does not belong to President Estrada.
 '4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the
outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice
President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that
during this second round of negotiation, the resignation of the petitioner was again treated as a given fact.
The only unsettled points at that time were the measures to be undertaken by the parties during and after
the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the
party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful
events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five points to
effect a peaceful transition. I can hear the general clearing all these points with a group he is with.
I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation
shall be effective on 24 January 2001, on which day the Vice President will assume the
presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and
security of the President and his families throughout their natural lifetimes as approved by the
national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as
national military and police authorities.
'5. Both parties request the impeachment court to open the second envelope in the impeachment
trial, the contents of which shall be offered as proof that the subject savings account does not
belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex "B"
heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our
side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided that
Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter is
already moot and academic. Within moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and
General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the
other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola. Only
the PSG is there to protect the Palace, since the police and military have already withdrawn their
support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.
 During lunch, Ronnie Puno mentions that the president needs to release a final statement before
leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took
her oath as President of the Republic of the Philippines. While along with many other legal minds
of our country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and
order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave the
Palace of our people with gratitude for the opportunities given to me for service to our people. I
will not shirk from any future challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving
Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of
the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized
he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the
healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that
he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his
gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past
opportunity given him to serve the people as President (4) he assured that he will not shirk from any
future challenge that may come ahead in the same service of our country. Petitioner's reference is to a
future challenge after occupying the office of the president which he has given up; and (5) he called on
his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity.
Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the
presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now
in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20,
2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we
refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the powers and duties of my office. By operation of
law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery. 91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did
the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes
the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during
the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final
press release. It was all too easy for him to tell the Filipino people in his press release that he was
temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for
the time bearing. Under any circumstance, however, the mysterious letter cannot negate the resignation
of the petitioner. If it was prepared before the press release of the petitioner clearly as a later act. If,
however, it was prepared after the press released, still, it commands scant legal significance. Petitioner's
resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will
especially if the resignation is the result of his reputation by the people. There is another reason why this
Court cannot given any legal significance to petitioner's letter and this shall be discussed in issue number
III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and
Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals
or administrative, or pending a prosecution against him, for any offense under this Act or under
the provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No.
3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the
Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his
sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the
period of amendments the inclusion of a provision to the effect that no public official who is under
prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to
voluntarily resign or retire."92 During the period of amendments, the following provision was inserted as
section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a prosecution against him, for any offense
under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his prosecution
under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section
15 above became section 13 under the new bill, but the deliberations on this particular provision mainly
focused on the immunity of the President, which was one of the reasons for the veto of the original bill.
There was hardly any debate on the prohibition against the resignation or retirement of a public official
with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought
to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a
protective shield to stop the investigation of a pending criminal or administrative case against him and to
prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal
Code. To be sure, no person can be compelled to render service for that would be a violation of his
constitutional right.94 A public official has the right not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal
investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or
administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution.
There is another reason why petitioner's contention should be rejected. In the cases at bar, the records
show that when petitioner resigned on January 20, 2001, the cases filed against him before the
Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While
these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary
investigation of the petitioner for the reason that as the sitting President then, petitioner was immune from
suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction
to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it
contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal
obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment
proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not
be considered pending at the time petitioner resigned because the process already broke down when a
majority of the senator-judges voted against the opening of the second envelope, the public and private
prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and
the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against
petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the
powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability
claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President
Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of
the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of
the House of Representatives his written declaration that he is unable to discharge the powers
and duties of his office, and until he transmits to them a written declaration to the contrary, such
powers and duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate
and to the Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Vice-President shall immediately
assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of the
House of Representatives his written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet
transmit within five days to the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable to discharge the powers and
duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall
 convene, if it is not in session, within forty-eight hours, in accordance with its rules and without
need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session,
within twelve days after it is required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to discharge the powers and duties of his
office, the Vice-President shall act as President; otherwise, the President shall continue
exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on January
20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001
House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO

THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A
PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the
Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief
Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended their
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an institution
and that of the individual members thereof of fealty to the supreme will of the people, the House
of Representatives must ensure to the people a stable, continuing government and therefore
must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify
the nation, to eliminate fractious tension, to heal social and political wounds, and to be an
instrument of national reconciliation and solidarity as it is a direct representative of the various
segments of the whole nation;
 WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing,
for the House of Representatives to extend its support and collaboration to the administration of
Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-
building, the national interest demanding no less: Now, therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into office
by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to
extend its congratulations and to express its support for her administration as a partner in the
attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION

OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and the
House of Representatives who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the
Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility and
patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary
of Justice, Senator of the Philippines – qualities which merit his nomination to the position of Vice
President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.
Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the
Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for meaningful
change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity
of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION

OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and the
House of Representatives who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the
Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility and
patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary
 of Justice, Senator of the land - which qualities merit his nomination to the position of Vice
President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which
states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is
functus officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday,
January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second envelope" be
transferred to the Archives of the Senate for proper safekeeping and preservation in accordance
with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written
approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in
the Senate and calling on the COMELEC to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001 and the Senatorial candidate garnering the
thirteenth (13th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T.
Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as
President.
(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any
sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise
that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly rejected
petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability of
petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this
Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary authority
has been delegated to the Legislative xxx branch of the government." Or to use the language in Baker
vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable and manageable
standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge
the power and duties of the presidency. The question is political in nature and addressed solely to
Congress by constitutional fiat. It is a political issue, which cannot be decided by this Court without
transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim
that he is a President on leave on the ground that he is merely unable to govern temporarily. That
claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure,
president made by a co-equal branch of government cannot be reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings
against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910
case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued
petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R.
Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for
damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court,
speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office, do
what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under
the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and
of property, wholly free from interference of courts or legislatures. This does not mean, either that
a person injured by the executive authority by an act unjustifiable under the law has n remedy,
but must submit in silence. On the contrary, it means, simply, that the governors-general, like the
judges if the courts and the members of the Legislature, may not be personally mulcted in civil
damages for the consequences of an act executed in the performance of his official duties. The
judiciary has full power to, and will, when the mater is properly presented to it and the occasion
justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as
 possible in status quo any person who has been deprived his liberty or his property by such act.
This remedy is assured to every person, however humble or of whatever country, when his
personal or property rights have been invaded, even by the highest authority of the state. The
thing which the judiciary can not do is mulct the Governor-General personally in damages which
result from the performance of his official duty, any more than it can a member of the Philippine
Commission of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly
appears from the discussion heretofore had, particularly that portion which touched the liability of
judges and drew an analogy between such liability and that of the Governor-General, that the
latter is liable when he acts in a case so plainly outside of his power and authority that he can not
be said to have exercised discretion in determining whether or not he had the right to act. What is
held here is that he will be protected from personal liability for damages not only when he acts
within his authority, but also when he is without authority, provided he actually used discretion
and judgement, that is, the judicial faculty, in determining whether he had authority to act or not.
In other words, in determining the question of his authority. If he decide wrongly, he is still
protected provided the question of his authority was one over which two men, reasonably
qualified for that position, might honestly differ; but he s not protected if the lack of authority to act
is so plain that two such men could not honestly differ over its determination. In such case, be
acts, not as Governor-General but as a private individual, and as such must answer for the
consequences of his act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from
suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the chief
executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials
of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust
as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then
came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973
Constitution was born. In 1981, it was amended and one of the amendments involved executive
immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall
lie for official acts done by him or by others pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article XVII
of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel,
former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by
this constitutional amendment on the existing law on executive privilege. To quote his disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying
the absolute immunity concept. First, we extended it to shield the President not only form civil
claims but also from criminal cases and other claims. Second, we enlarged its scope so that it
would cover even acts of the President outside the scope of official duties. And third, we
broadened its coverage so as to include not only the President but also other persons, be they
government officials or private individuals, who acted upon orders of the President. It can be said
that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of
Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos
violated the principle that a public office is a public trust. He denounced the immunity as a return to the
anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by delegate J.
Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well
in striking out second sentence, at the very least, of the original provision on immunity from suit
under the 1973 Constitution. But would the Committee members not agree to a restoration of at
least the first sentence that the President shall be immune from suit during his tenure, considering
that if we do not provide him that kind of an immunity, he might be spending all his time facing
litigation's, as the President-in-exile in Hawaii is now facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence
that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that
he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings.
The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the
events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate
Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio."109 Since, the
Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be
impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual
bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a
better situation than a non-sitting President who has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have become moot due to the resignation
of the President, the proper criminal and civil cases may already be filed against him, viz: 110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?
 Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune
from suit or from being brought to court during the period of their incumbency and tenure" but not beyond.
Considering the peculiar circumstance that the impeachment process against the petitioner has been
aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua
non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment
proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and related cases113 are
inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The
cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft
and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the
death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot
cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-
tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for
unlawful acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and
the officer who acts illegally is not acting as such but stands in the same footing as any trespasser. 114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to
expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In
the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to
produce certain recordings and documents relating to his conversations with aids and advisers. Seven
advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other
offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's
Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an unindicted
co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the
President was not subject to judicial process and that he should first be impeached and removed from
office before he could be made amenable to judicial proceedings. The claim was rejected by the US
Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in the fair administration of criminal justice."
In the 1982 case of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity of the
president from civil damages covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the US President's
immunity from suits for money damages arising out of their official acts is inapplicable to unofficial
conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in
our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. 118
It declared as a state policy that "the State shall maintain honesty and integrity in the public service and
take positive and effective measures against graft and corruptio."119 it ordained that "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."120 It set the rule that 'the
right of the State to recover properties unlawfully acquired by public officials or employees, from them or
from their nominees or transferees, shall not be barred by prescription, latches or estoppel." 121 It
maintained the Sandiganbayan as an anti-graft court.122 It created the office of the Ombudsman and
endowed it with enormous powers, among which is to "investigate on its own, or on complaint by any
person, any act or omission of any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust improper or inefficient."123 The Office of the Ombudsman was also given
fiscal autonomy.124 These constitutional policies will be devalued if we sustain petitioner's claim that a
non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency.
 V

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases. 125 The British approach the
problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop
criminal trials when the right of an accused to fair trial suffers a threat.126 The American approach is
different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the
right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e.,
substantial; probability of irreparable harm, strong likelihood, clear and present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the
case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive
publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the
right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible
reporting enhances accused's right to a fair trial for, as well pointed out, a responsible press has
always been regarded as the criminal field xxx. The press does not simply publish information
about trials but guards against the miscarriage of justice by subjecting the police, prosecutors,
and judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact
that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove
that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it
is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity
of sensational criminal cases. The state of the art of our communication system brings news as
they happen straight to our breakfast tables and right to our bedrooms. These news form part of
our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial
judge is not that of a hermit who is out of touch with the world. We have not installed the jury
system whose members are overly protected from publicity lest they lose there impartially. xxx
xxx xxx. Our judges are learned in the law and trained to disregard off-court evidence and on-
camera performances of parties to litigation. Their mere exposure to publications and publicity
stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of
actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at a bar, the records do not show that the trial judge
developed actual bias against appellants as a consequence of the extensive media coverage of
the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the
trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of change
 even by evidence presented during the trial. Appellant has the burden to prove this actual bias
and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc. 130
and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early invocation
considering the substantial risk to their liberty while undergoing a preliminary investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high velocity of
publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and
fiction about the case continues unabated even today. Commentators still bombard the public
with views not too many of which are sober and sublime. Indeed, even the principal actors in the
case – the NBI, the respondents, their lawyers and their sympathizers have participated in this
media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal
trials cannot be completely closed to the press and public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus giving
assurance that the proceedings were conducted fairly to all concerned and discouraging
perjury, the misconduct of participants, or decisions based on secret bias or partiality. In
addition, the significant community therapeutic value of public trials was recognized when
a shocking crime occurs a community reaction of outrage and public protest often follows,
and thereafter the open processes of justice serve an important prophylactic purpose,
providing an outlet for community concern, hostility and emotion. To work effectively, it is
important that society's criminal process satisfy the appearance of justice,' Offutt v.
United States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by
allowing people to observe such process. From this unbroken, uncontradicted history,
supported by reasons as valid today as in centuries past, it must be concluded that a
presumption of openness inheres in the very nature of a criminal trial under this Nation's
system of justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct
1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedom such as those
of speech and press, the First Amendment can be read as protecting the right of
everyone to attend trials so as give meaning to those explicit guarantees; the First
Amendment right to receive information and ideas means, in the context of trials, that the
guarantees of speech and press, standing alone, prohibit government from summarily
closing courtroom doors which had long been open to the public at the time the First
Amendment was adopted. Moreover, the right of assembly is also relevant, having been
regarded not only as an independent right but also as a catalyst to augment the free
exercise of the other First Amendment rights with which the draftsmen deliberately linked
it. A trial courtroom is a public place where the people generally and representatives of
the media have a right to be present, and where their presence historically has been
thought to enhance the integrity and quality of what takes place.
 c. Even though the Constitution contains no provision which be its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised for
centuries, important aspects of freedom of speech and of the press be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et
al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be
allegation and proof that the judges have been unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that
the tone and content of the publicity that attended the investigation of petitioners fatally infected
the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal
effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown
and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a
factor to consider in determining whether they can easily be blinded by the klieg lights of publicity.
Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that
they considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the generosity
with which they accommodated the discovery motions of petitioners speak well of their fairness.
At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel
on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis
supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin
the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to
offer more than hostile headlines to discharge his burden of proof. 131 He needs to show more weighty
social science evidence to successfully prove the impaired capacity of a judge to render a bias-free
decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a
special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has
been made by the petitioner that the minds of the members of this special panel have already been
infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has
yet to come out with its findings and the Court cannot second guess whether its recommendation will be
unfavorable to the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs."132
News reports have also been quoted to establish that the respondent Ombudsman has already prejudged
the cases of the petitioner133 and it is postulated that the prosecutors investigating the petitioner will be
influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news
reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light
of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good
faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the
theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman
flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigation
prosecutors the independence to make their own findings and recommendations albeit they are
reviewable by their superiors.134 They can be reversed but they can not be compelled cases which they
believe deserve dismissal. In other words, investigating prosecutors should not be treated like unthinking
slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner
and the latter believes that the findings of probable cause against him is the result of bias, he still has the
remedy of assailing it before the proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different
dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the
majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more
threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to
prosecute the guilty and the right of an accused to a fair investigation and trial which has been
categorized as the "most fundamental of all freedoms."135 To be sure, the duty of a prosecutor is more to
do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the
petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce
calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose
judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of
number for in a democracy, the dogmatism of the majority is not and should never be the definition of the
rule of law. If democracy has proved to be the best form of government, it is because it has respected the
right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts,
however offensive they may be, is the key to man's progress from the cave to civilization. Let us not throw
away that key just to pander to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5 September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner,

vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of
Manila, respondents.1

Marcelino Lontok for petitioner.

P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.

FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent judge of the lower
court be ordered to continue the proceedings in civil case No. 3012 of said court, which were
initiated under the regime of the so-called Republic of the Philippines established during the
Japanese military occupation of these Islands.

The respondent judge refused to take cognizance of and continue the proceedings in said case on
the ground that the proclamation issued on October 23, 1944, by General Douglas MacArthur
had the effect of invalidating and nullifying all judicial proceedings and judgements of the court
of the Philippines under the Philippine Executive Commission and the Republic of the
Philippines established during the Japanese military occupation, and that, furthermore, the lower
courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in
the courts of the defunct Republic of the Philippines in the absence of an enabling law granting
such authority. And the same respondent, in his answer and memorandum filed in this Court,
contends that the government established in the Philippines during the Japanese occupation were
no de facto governments.

On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next
day their Commander in Chief proclaimed "the Military Administration under law over the
districts occupied by the Army." In said proclamation, it was also provided that "so far as the
Military Administration permits, all the laws now in force in the Commonwealth, as well as
executive and judicial institutions, shall continue to be effective for the time being as in the
past," and "all public officials shall remain in their present posts and carry on faithfully their
duties as before."

A civil government or central administration organization under the name of "Philippine

Executive Commission was organized by Order No. 1 issued on January 23, 1942, by the
Commander in Chief of the Japanese Forces in the Philippines, and Jorge B. Vargas, who was
appointed Chairman thereof, was instructed to proceed to the immediate coordination of the
existing central administrative organs and judicial courts, based upon what had existed therefore,
with approval of the said Commander in Chief, who was to exercise jurisdiction over judicial
courts.

The Chairman of the Executive Commission, as head of the central administrative organization,
issued Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in
which the Supreme Court, Court of Appeals, Courts of First Instance, and the justices of the
peace and municipal courts under the Commonwealth were continued with the same jurisdiction,
in conformity with the instructions given to the said Chairman of the Executive Commission by
the Commander in Chief of Japanese Forces in the Philippines in the latter's Order No. 3 of
February 20, 1942, concerning basic principles to be observed by the Philippine Executive
Commission in exercising legislative, executive and judicial powers. Section 1 of said Order
provided that "activities of the administration organs and judicial courts in the Philippines shall
be based upon the existing statutes, orders, ordinances and customs. . . ."

On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no
substantial change was effected thereby in the organization and jurisdiction of the different
courts that functioned during the Philippine Executive Commission, and in the laws they
administered and enforced.

On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur
issued a proclamation to the People of the Philippines which declared:

1. That the Government of the Commonwealth of the Philippines is, subject to the
supreme authority of the Government of the United States, the sole and only government
having legal and valid jurisdiction over the people in areas of the Philippines free of
enemy occupation and control;

2. That the laws now existing on the statute books of the Commonwealth of the
Philippines and the regulations promulgated pursuant thereto are in full force and effect
and legally binding upon the people in areas of the Philippines free of enemy occupation
and control; and

3. That all laws, regulations and processes of any other government in the Philippines
than that of the said Commonwealth are null and void and without legal effect in areas of
the Philippines free of enemy occupation and control.

On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945,
General MacArthur, on behalf of the Government of the United States, solemnly declared "the
full powers and responsibilities under the Constitution restored to the Commonwealth whose seat
is here established as provided by law."

In the light of these facts and events of contemporary history, the principal questions to be
resolved in the present case may be reduced to the following:(1) Whether the judicial acts and
proceedings of the court existing in the Philippines under the Philippine Executive Commission
and the Republic of the Philippines were good and valid and remained so even after the
liberation or reoccupation of the Philippines by the United States and Filipino forces; (2)Whether
the proclamation issued on October 23, 1944, by General Douglas MacArthur, Commander in
Chief of the United States Army, in which he declared "that all laws, regulations and processes
of any of the government in the Philippines than that of the said Commonwealth are null and
void and without legal effect in areas of the Philippines free of enemy occupation and control,"
has invalidated all judgements and judicial acts and proceedings of the said courts; and (3) If the
said judicial acts and proceedings have not been invalidated by said proclamation, whether the
present courts of the Commonwealth, which were the same court existing prior to, and continued
during, the Japanese military occupation of the Philippines, may continue those proceedings
pending in said courts at the time the Philippines were reoccupied and liberated by the United
States and Filipino forces, and the Commonwealth of the Philippines were reestablished in the
Islands.

We shall now proceed to consider the first question, that is, whether or not under the rules of
international law the judicial acts and proceedings of the courts established in the Philippines
under the Philippine Executive Commission and the Republic of the Philippines were good and
valid and remained good and valid even after the liberation or reoccupation of the Philippines by
the United States and Filipino forces.

1. It is a legal truism in political and international law that all acts and proceedings of the
legislative, executive, and judicial departments of a de facto government are good and valid. The
question to be determined is whether or not the governments established in these Islands under
the names of the Philippine Executive Commission and Republic of the Philippines during the
Japanese military occupation or regime were de facto governments. If they were, the judicial acts
and proceedings of those governments remain good and valid even after the liberation or
reoccupation of the Philippines by the American and Filipino forces.

There are several kinds of de facto governments. The first, or government de facto in a proper
legal sense, is that government that gets possession and control of, or usurps, by force or by the
voice of the majority, the rightful legal governments and maintains itself against the will of the
latter, such as the government of England under the Commonwealth, first by Parliament and later
by Cromwell as Protector. The second is that which is established and maintained by military
forces who invade and occupy a territory of the enemy in the course of war, and which is
denominated a government of paramount force, as the cases of Castine, in Maine, which was
reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war
with Mexico, by the troops of the United States. And the third is that established as an
independent government by the inhabitants of a country who rise in insurrection against the
parent state of such as the government of the Southern Confederacy in revolt not concerned in
the present case with the first kind, but only with the second and third kinds of de facto
governments.

Speaking of government "de facto" of the second kind, the Supreme Court of the United States,
in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of
government, called also by publicists a government de facto, but which might, perhaps, be more
aptly denominated a government of paramount force. Its distinguishing characteristics are (1),
that its existence is maintained by active military power with the territories, and against the
rightful authority of an established and lawful government; and (2), that while it exists it
necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in
submission to such force, do not become responsible, or wrongdoers, for those acts, though not
warranted by the laws of the rightful government. Actual governments of this sort are established
over districts differing greatly in extent and conditions. They are usually administered directly by
military authority, but they may be administered, also, civil authority, supported more or less
directly by military force. . . . One example of this sort of government is found in the case of
Castine, in Mine, reduced to British possession in the war of 1812 . . . U. S. vs. Rice (4 Wheaton,
253). A like example is found in the case of Tampico, occupied during the war with Mexico, by
the troops of the United States . . . Fleming vs. Page (9 Howard, 614). These were cases of
temporary possessions of territory by lawfull and regular governments at war with the country of
which the territory so possessed was part."

The powers and duties of de facto governments of this description are regulated in Section III of
the Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions
of 1899 on the same subject of said Section III provides "the authority of the legislative power
having actually passed into the hands of the occupant, the latter shall take steps in his power to
reestablish and insure, as far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country."

According to the precepts of the Hague Conventions, as the belligerent occupant has the right
and is burdened with the duty to insure public order and safety during his military occupation, he
possesses all the powers of a de facto government, and he can suspended the old laws and
promulgate new ones and make such changes in the old as he may see fit, but he is enjoined to
respect, unless absolutely prevented by the circumstances prevailing in the occupied territory, the
municipal laws in force in the country, that is, those laws which enforce public order and
regulate social and commercial life of the country. On the other hand, laws of a political nature
or affecting political relations, such as, among others, the right of assembly, the right to bear
arms, the freedom of the press, and the right to travel freely in the territory occupied, are
considered as suspended or in abeyance during the military occupation. Although the local and
civil administration of justice is suspended as a matter of course as soon as a country is militarily
occupied, it is not usual for the invader to take the whole administration into his own hands. In
practice, the local ordinary tribunals are authorized to continue administering justice; and judges
and other judicial officers are kept in their posts if they accept the authority of the belligerent
occupant or are required to continue in their positions under the supervision of the military or
civil authorities appointed, by the Commander in Chief of the occupant. These principles and
practice have the sanction of all publicists who have considered the subject, and have been
asserted by the Supreme Court and applied by the President of the United States.

The doctrine upon this subject is thus summed up by Halleck, in his work on International Law
(Vol. 2, p. 444): "The right of one belligerent to occupy and govern the territory of the enemy
while in its military possession, is one of the incidents of war, and flows directly from the right
to conquer. We, therefore, do not look to the Constitution or political institutions of the
conqueror, for authority to establish a government for the territory of the enemy in his
possession, during its military occupation, nor for the rules by which the powers of such
government are regulated and limited. Such authority and such rules are derived directly from
the laws war, as established by the usage of the of the world, and confirmed by the writings of
publicists and decisions of courts — in fine, from the law of nations. . . . The municipal laws of a
conquered territory, or the laws which regulate private rights, continue in force during military
occupation, excepts so far as they are suspended or changed by the acts of conqueror. . . . He,
nevertheless, has all the powers of a de facto government, and can at his pleasure either change
the existing laws or make new ones."

And applying the principles for the exercise of military authority in an occupied territory, which
were later embodied in the said Hague Conventions, President McKinley, in his executive order
to the Secretary of War of May 19,1898, relating to the occupation of the Philippines by United
States forces, said in part: "Though the powers of the military occupant are absolute and
supreme, and immediately operate upon the political condition of the inhabitants, the municipal
laws of the conquered territory, such as affect private rights of person and property and provide
for the punishment of crime, are considered as continuing in force, so far as they are compatible
with the new order of things, until they are suspended or superseded by the occupying
belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and
to be administered by the ordinary tribunals, substantially as they were before the occupation.
This enlightened practice is, so far as possible, to be adhered to on the present occasion. The
judges and the other officials connected with the administration of justice may, if they accept the
authority of the United States, continue to administer the ordinary law of the land as between
man and man under the supervision of the American Commander in Chief." (Richardson's
Messages and Papers of President, X, p. 209.)

As to "de facto" government of the third kind, the Supreme Court of the United States, in the
same case of Thorington vs. Smith, supra, recognized the government set up by the Confederate
States as a de facto government. In that case, it was held that "the central government established
for the insurgent States differed from the temporary governments at Castine and Tampico in the
circumstance that its authority did no originate in lawful acts of regular war; but it was not, on
the account, less actual or less supreme. And we think that it must be classed among the
governments of which these are examples. . . .

In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States,
discussing the validity of the acts of the Confederate States, said: "The same general form of
government, the same general laws for the administration of justice and protection of private
rights, which had existed in the States prior to the rebellion, remained during its continuance and
afterwards. As far as the Acts of the States do not impair or tend to impair the supremacy of the
national authority, or the just rights of citizens under the Constitution, they are, in general, to be
treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657):
"The existence of a state of insurrection and war did not loosen the bonds of society, or do away
with civil government or the regular administration of the laws. Order was to be preserved,
police regulations maintained, crime prosecuted, property protected, contracts enforced,
marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely
as in the time of peace. No one, that we are aware of, seriously questions the validity of judicial
or legislative Acts in the insurrectionary States touching these and kindered subjects, where they
were not hostile in their purpose or mode of enforcement to the authority of the National
Government, and did not impair the rights of citizens under the Constitution'. The same doctrine
has been asserted in numerous other cases."

And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what
occured or was done in respect of such matters under the authority of the laws of these local de
facto governments should not be disregarded or held to be invalid merely because those
governments were organized in hostility to the Union established by the national Constitution;
this, because the existence of war between the United States and the Confederate States did not
relieve those who are within the insurrectionary lines from the necessity of civil obedience, nor
destroy the bonds of society nor do away with civil government or the regular administration of
the laws, and because transactions in the ordinary course of civil society as organized within the
enemy's territory although they may have indirectly or remotely promoted the ends of the de
facto or unlawful government organized to effect a dissolution of the Union, were without blame
'except when proved to have been entered into with actual intent to further invasion or
insurrection:'" and "That judicial and legislative acts in the respective states composing the so-
called Confederate States should be respected by the courts if they were not hostile in their
purpose or mode of enforcement to the authority of the National Government, and did not impair
the rights of citizens under the Constitution."

In view of the foregoing, it is evident that the Philippine Executive Commission, which was
organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese
forces, was a civil government established by the military forces of occupation and therefore a de
facto government of the second kind. It was not different from the government established by the
British in Castine, Maine, or by the United States in Tampico, Mexico. As Halleck says, "The
government established over an enemy's territory during the military occupation may exercise all
the powers given by the laws of war to the conqueror over the conquered, and is subject to all
restrictions which that code imposes. It is of little consequence whether such government be
called a military or civil government. Its character is the same and the source of its authority the
same. In either case it is a government imposed by the laws of war, and so far it concerns the
inhabitants of such territory or the rest of the world, those laws alone determine the legality or
illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine Executive Commission was a
civil and not a military government and was run by Filipinos and not by Japanese nationals, is of
no consequence. In 1806, when Napoleon occupied the greater part of Prussia, he retained the
existing administration under the general direction of a french official (Langfrey History of
Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington, on invading France,
authorized the local authorities to continue the exercise of their functions, apparently without
appointing an English superior. (Wellington Despatches, XI, 307.). The Germans, on the other
hand, when they invaded France in 1870, appointed their own officials, at least in Alsace and
Lorraine, in every department of administration and of every rank. (Calvo, pars. 2186-93; Hall,
International Law, 7th ed., p. 505, note 2.)

The so-called Republic of the Philippines, apparently established and organized as a sovereign
state independent from any other government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the Japanese forces of occupation. It was
of the same character as the Philippine Executive Commission, and the ultimate source of its
authority was the same — the Japanese military authority and government. As General
MacArthur stated in his proclamation of October 23, 1944, a portion of which has been already
quoted, "under enemy duress, a so-called government styled as the 'Republic of the Philippines'
was established on October 14, 1943, based upon neither the free expression of the people's will
nor the sanction of the Government of the United States." Japan had no legal power to grant
independence to the Philippines or transfer the sovereignty of the United States to, or recognize
the latent sovereignty of, the Filipino people, before its military occupation and possession of the
Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace
or other means recognized in the law of nations. For it is a well-established doctrine in
International Law, recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits
compulsion of the population of the occupied territory to swear allegiance to the hostile power),
the belligerent occupation, being essentially provisional, does not serve to transfer sovereignty
over the territory controlled although the de jure government is during the period of occupancy
deprived of the power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9
Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603; Downes
vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the Philippines was a scheme
contrived by Japan to delude the Filipino people into believing in the apparent magnanimity of
the Japanese gesture of transferring or turning over the rights of government into the hands of
Filipinos. It was established under the mistaken belief that by doing so, Japan would secure the
cooperation or at least the neutrality of the Filipino people in her war against the United States
and other allied nations.

Indeed, even if the Republic of the Philippines had been established by the free will of the
Filipino who, taking advantage of the withdrawal of the American forces from the Islands, and
the occupation thereof by the Japanese forces of invasion, had organized an independent
government under the name with the support and backing of Japan, such government would have
been considered as one established by the Filipinos in insurrection or rebellion against the parent
state or the Unite States. And as such, it would have been a de facto government similar to that
organized by the confederate states during the war of secession and recognized as such by the by
the Supreme Court of the United States in numerous cases, notably those of Thorington vs.
Smith, Williams vs. Bruffy, and Badly vs. Hunter, above quoted; and similar to the short-lived
government established by the Filipino insurgents in the Island of Cebu during the Spanish-
American war, recognized as a de facto government by the Supreme Court of the United States
in the case of McCleod vs. United States (299 U. S., 416). According to the facts in the last-
named case, the Spanish forces evacuated the Island of Cebu on December 25, 1898, having first
appointed a provisional government, and shortly afterwards, the Filipinos, formerly in
insurrection against Spain, took possession of the Islands and established a republic, governing
the Islands until possession thereof was surrendered to the United States on February 22, 1898.
And the said Supreme Court held in that case that "such government was of the class of de facto
governments described in I Moore's International Law Digest, S 20, . . . 'called also by publicists
a government de facto, but which might, perhaps, be more aptly denominated a government of
paramount force . . '." That is to say, that the government of a country in possession of
belligerent forces in insurrection or rebellion against the parent state, rests upon the same
principles as that of a territory occupied by the hostile army of an enemy at regular war with the
legitimate power.

The governments by the Philippine Executive Commission and the Republic of the Philippines
during the Japanese military occupation being de facto governments, it necessarily follows that
the judicial acts and proceedings of the courts of justice of those governments, which are not of a
political complexion, were good and valid, and, by virtue of the well-known principle of
postliminy (postliminium) in international law, remained good and valid after the liberation or
reoccupation of the Philippines by the American and Filipino forces under the leadership of
General Douglas MacArthur. According to that well-known principle in international law, the
fact that a territory which has been occupied by an enemy comes again into the power of its
legitimate government of sovereignty, "does not, except in a very few cases, wipe out the effects
of acts done by an invader, which for one reason or another it is within his competence to do.
Thus judicial acts done under his control, when they are not of a political complexion,
administrative acts so done, to the extent that they take effect during the continuance of his
control, and the various acts done during the same time by private persons under the sanction of
municipal law, remain good. Were it otherwise, the whole social life of a community would be
paralyzed by an invasion; and as between the state and the individuals the evil would be scarcely
less, — it would be hard for example that payment of taxes made under duress should be
ignored, and it would be contrary to the general interest that the sentences passed upon criminals
should be annulled by the disappearance of the intrusive government ." (Hall, International Law,
7th ed., p. 518.) And when the occupation and the abandonment have been each an incident of
the same war as in the present case, postliminy applies, even though the occupant has acted as
conqueror and for the time substituted his own sovereignty as the Japanese intended to do
apparently in granting independence to the Philippines and establishing the so-called Republic of
the Philippines. (Taylor, International Law, p. 615.)

That not only judicial but also legislative acts of de facto governments, which are not of a
political complexion, are and remain valid after reoccupation of a territory occupied by a
belligerent occupant, is confirmed by the Proclamation issued by General Douglas MacArthur on
October 23, 1944, which declares null and void all laws, regulations and processes of the
governments established in the Philippines during the Japanese occupation, for it would not have
been necessary for said proclamation to abrogate them if they were invalid ab initio.

2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the above-quoted proclamation of General Douglas MacArthur of
October 23, 1944 — that is, whether it was the intention of the Commander in Chief of the
American Forces to annul and void thereby all judgments and judicial proceedings of the courts
established in the Philippines during the Japanese military occupation.

The phrase "processes of any other government" is broad and may refer not only to the judicial
processes, but also to administrative or legislative, as well as constitutional, processes of the
Republic of the Philippines or other governmental agencies established in the Islands during the
Japanese occupation. Taking into consideration the fact that, as above indicated, according to the
well-known principles of international law all judgements and judicial proceedings, which are
not of a political complexion, of the de facto governments during the Japanese military
occupation were good and valid before and remained so after the occupied territory had come
again into the power of the titular sovereign, it should be presumed that it was not, and could not
have been, the intention of General Douglas MacArthur, in using the phrase "processes of any
other government" in said proclamation, to refer to judicial processes, in violation of said
principles of international law. The only reasonable construction of the said phrase is that it
refers to governmental processes other than judicial processes of court proceedings, for
according to a well-known rule of statutory construction, set forth in 25 R. C. L., p. 1028, "a
statute ought never to be construed to violate the law of nations if any other possible construction
remains."

It is true that the commanding general of a belligerent army of occupation, as an agent of his
government, may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory, if and when the exigencies of the military occupation demand such action. But even
assuming that, under the law of nations, the legislative power of a commander in chief of
military forces who liberates or reoccupies his own territory which has been occupied by an
enemy, during the military and before the restoration of the civil regime, is as broad as that of the
commander in chief of the military forces of invasion and occupation (although the exigencies of
military reoccupation are evidently less than those of occupation), it is to be presumed that
General Douglas MacArthur, who was acting as an agent or a representative of the Government
and the President of the United States, constitutional commander in chief of the United States
Army, did not intend to act against the principles of the law of nations asserted by the Supreme
Court of the United States from the early period of its existence, applied by the Presidents of the
United States, and later embodied in the Hague Conventions of 1907, as above indicated. It is not
to be presumed that General Douglas MacArthur, who enjoined in the same proclamation of
October 23, 1944, "upon the loyal citizens of the Philippines full respect and obedience to the
Constitution of the Commonwealth of the Philippines," should not only reverse the international
policy and practice of his own government, but also disregard in the same breath the provisions
of section 3, Article II, of our Constitution, which provides that "The Philippines renounces war
as an instrument of national policy, and adopts the generally accepted principles of international
law as part of the law of the Nation."

Moreover, from a contrary construction great inconvenience and public hardship would result,
and great public interests would be endangered and sacrificed, for disputes or suits already
adjudged would have to be again settled accrued or vested rights nullified, sentences passed on
criminals set aside, and criminals might easily become immune for evidence against them may
have already disappeared or be no longer available, especially now that almost all court records
in the Philippines have been destroyed by fire as a consequence of the war. And it is another
well-established rule of statutory construction that where great inconvenience will result from a
particular construction, or great public interests would be endangered or sacrificed, or great
mischief done, such construction is to be avoided, or the court ought to presume that such
construction was not intended by the makers of the law, unless required by clear and unequivocal
words. (25 R. C. L., pp. 1025, 1027.)

The mere conception or thought of possibility that the titular sovereign or his representatives
who reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or
proceedings of the tribunals which the belligerent occupant had the right and duty to establish in
order to insure public order and safety during military occupation, would be sufficient to
paralyze the social life of the country or occupied territory, for it would have to be expected that
litigants would not willingly submit their litigation to courts whose judgements or decisions may
afterwards be annulled, and criminals would not be deterred from committing crimes or offenses
in the expectancy that they may escaped the penalty if judgments rendered against them may be
afterwards set aside.

That the proclamation has not invalidated all the judgements and proceedings of the courts of
justice during the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has
the force of law, issued by the President of the Philippines on March 10, 1945, by virtue of the
emergency legislative power vested in him by the Constitution and the laws of the
Commonwealth of the Philippines. Said Executive order abolished the Court of Appeals, and
provided "that all case which have heretofore been duly appealed to the Court of Appeals shall
be transmitted to the Supreme Court final decision." This provision impliedly recognizes that the
judgments and proceedings of the courts during the Japanese military occupation have not been
invalidated by the proclamation of General MacArthur of October 23, because the said Order
does not say or refer to cases which have been duly appealed to said court prior to the Japanese
occupation, but to cases which had therefore, that is, up to March 10, 1945, been duly appealed
to the Court of Appeals; and it is to be presumed that almost all, if not all, appealed cases
pending in the Court of Appeals prior to the Japanese military occupation of Manila on January
2, 1942, had been disposed of by the latter before the restoration of the Commonwealth
Government in 1945; while almost all, if not all, appealed cases pending on March 10, 1945, in
the Court of Appeals were from judgments rendered by the Court of First Instance during the
Japanese regime.

The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover
when it is said that an occupier's acts are valid and under international law should not be
abrogated by the subsequent conqueror, it must be remembered that no crucial instances exist to
show that if his acts should be reversed, any international wrong would be committed. What does
happen is that most matters are allowed to stand by the restored government, but the matter can
hardly be put further than this." (Wheaton, International Law, War, 7th English edition of 1944,
p. 245.) And from this quotion the respondent judge "draws the conclusion that whether the acts
of the occupant should be considered valid or not, is a question that is up to the restored
government to decide; that there is no rule of international law that denies to the restored
government to decide; that there is no rule of international law that denies to the restored
government the right of exercise its discretion on the matter, imposing upon it in its stead the
obligation of recognizing and enforcing the acts of the overthrown government."

There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the
occupier, such as the laws, regulations and processes other than judicial of the government
established by the belligerent occupant. But in view of the fact that the proclamation uses the
words "processes of any other government" and not "judicial processes" prisely, it is not
necessary to determine whether or not General Douglas MacArthur had power to annul and set
aside all judgments and proceedings of the courts during the Japanese occupation. The question
to be determined is whether or not it was his intention, as representative of the President of the
United States, to avoid or nullify them. If the proclamation had, expressly or by necessary
implication, declared null and void the judicial processes of any other government, it would be
necessary for this court to decide in the present case whether or not General Douglas MacArthur
had authority to declare them null and void. But the proclamation did not so provide,
undoubtedly because the author thereof was fully aware of the limitations of his powers as
Commander in Chief of Military Forces of liberation or subsequent conqueror.

Not only the Hague Regulations, but also the principles of international law, as they result from
the usages established between civilized nations, the laws of humanity and the requirements of
the public of conscience, constitute or from the law of nations. (Preamble of the Hague
Conventions; Westlake, International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the
Hague Regulations or Conventions which we have already quoted in discussing the first
question, imposes upon the occupant the obligation to establish courts; and Article 23 (h), section
II, of the same Conventions, which prohibits the belligerent occupant "to declare . . . suspended .
. . in a Court of Law the rights and action of the nationals of the hostile party," forbids him to
make any declaration preventing the inhabitants from using their courts to assert or enforce their
civil rights. (Decision of the Court of Appeals of England in the case of Porter vs. Fruedenburg,
L.R. [1915], 1 K.B., 857.) If a belligerent occupant is required to establish courts of justice in the
territory occupied, and forbidden to prevent the nationals thereof from asserting or enforcing
therein their civil rights, by necessary implication, the military commander of the forces of
liberation or the restored government is restrained from nullifying or setting aside the judgments
rendered by said courts in their litigation during the period of occupation. Otherwise, the purpose
of these precepts of the Hague Conventions would be thwarted, for to declare them null and void
would be tantamount to suspending in said courts the right and action of the nationals of the
territory during the military occupation thereof by the enemy. It goes without saying that a law
that enjoins a person to do something will not at the same time empower another to undo the
same. Although the question whether the President or commanding officer of the United States
Army has violated restraints imposed by the constitution and laws of his country is obviously of
a domestic nature, yet, in construing and applying limitations imposed on the executive
authority, the Supreme Court of the United States, in the case of Ochoa, vs. Hernandez (230
U.S., 139), has declared that they "arise from general rules of international law and from
fundamental principles known wherever the American flag flies."

In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in
command of the forces of the United States in South Carolina after the end of the Civil War,
wholly annulling a decree rendered by a court of chancery in that state in a case within its
jurisdiction, was declared void, and not warranted by the acts approved respectively March 2,
1867 (14 Stat., 428), and July 19 of the same year (15 id., 14), which defined the powers and
duties of military officers in command of the several states then lately in rebellion. In the course
of its decision the court said; "We have looked carefully through the acts of March 2, 1867 and
July 19, 1867. They give very large governmental powers to the military commanders
designated, within the States committed respectively to their jurisdiction; but we have found
nothing to warrant the order here in question. . . . The clearest language would be necessary to
satisfy us that Congress intended that the power given by these acts should be so exercised. . . . It
was an arbitrary stretch of authority, needful to no good end that can be imagined. Whether
Congress could have conferred the power to do such an act is a question we are not called upon
to consider. It is an unbending rule of law that the exercise of military power, where the rights of
the citizen are concerned, shall never be pushed beyond what the exigency requires. (Mithell vs.
Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161;
s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the standpoint indicated,
we hold that the order was void."

It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which
declared that "all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void without legal effect in areas of the Philippines
free of enemy occupation and control," has not invalidated the judicial acts and proceedings,
which are not a political complexion, of the courts of justice in the Philippines that were
continued by the Philippine Executive Commission and the Republic of the Philippines during
the Japanese military occupation, and that said judicial acts and proceedings were good and valid
before and now good and valid after the reoccupation of liberation of the Philippines by the
American and Filipino forces.

3. The third and last question is whether or not the courts of the Commonwealth, which are the
same as those existing prior to, and continued during, the Japanese military occupation by the
Philippine Executive Commission and by the so-called Republic of the Philippines, have
jurisdiction to continue now the proceedings in actions pending in said courts at the time the
Philippine Islands were reoccupied or liberated by the American and Filipino forces, and the
Commonwealth Government was restored.

Although in theory the authority the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in practice the
invader does not usually take the administration of justice into his own hands, but continues the
ordinary courts or tribunals to administer the laws of the country which he is enjoined, unless
absolutely prevented, to respect. As stated in the above-quoted Executive Order of President
McKinley to the Secretary of War on May 19, 1898, "in practice, they (the municipal laws) are
not usually abrogated but are allowed to remain in force and to be administered by the ordinary
tribunals substantially as they were before the occupation. This enlightened practice is, so far as
possible, to be adhered to on the present occasion." And Taylor in this connection says: "From a
theoretical point of view it may be said that the conqueror is armed with the right to substitute his
arbitrary will for all preexisting forms of government, legislative, executive and judicial. From
the stand-point of actual practice such arbitrary will is restrained by the provision of the law of
nations which compels the conqueror to continue local laws and institution so far as military
necessity will permit." (Taylor, International Public Law, p.596.) Undoubtedly, this practice has
been adopted in order that the ordinary pursuits and business of society may not be unnecessarily
deranged, inasmuch as belligerent occupation is essentially provisional, and the government
established by the occupant of transient character.

Following these practice and precepts of the law of nations, Commander in Chief of the Japanese
Forces proclaimed on January 3, 1942, when Manila was occupied, the military administration
under martial law over the territory occupied by the army, and ordered that "all the laws now in
force in the Commonwealth, as well as executive and judicial institutions, shall continue to be
affective for the time being as in the past," and "all public officials shall remain in their present
post and carry on faithfully their duties as before." When the Philippine Executive Commission
was organized by Order No. 1 of the Japanese Commander in Chief, on January 23, 1942, the
Chairman of the Executive Commission, by Executive Orders Nos. 1 and 4 of January 30 and
February 5, respectively, continued the Supreme Court, Court of Appeals, Court of First
Instance, and justices of the peace of courts, with the same jurisdiction in conformity with the
instructions given by the Commander in Chief of the Imperial Japanese Army in Order No. 3 of
February 20, 1942. And on October 14, 1943 when the so-called Republic of the Philippines was
inaugurated, the same courts were continued with no substantial change in organization and
jurisdiction thereof.

If the proceedings pending in the different courts of the Islands prior to the Japanese military
occupation had been continued during the Japanese military administration, the Philippine
Executive Commission, and the so-called Republic of the Philippines, it stands to reason that the
same courts, which had become reestablished and conceived of as having in continued existence
upon the reoccupation and liberation of the Philippines by virtue of the principle of postliminy
(Hall, International Law, 7th ed., p. 516), may continue the proceedings in cases then pending in
said courts, without necessity of enacting a law conferring jurisdiction upon them to continue
said proceedings. As Taylor graphically points out in speaking of said principles "a state or other
governmental entity, upon the removal of a foreign military force, resumes its old place with its
right and duties substantially unimpaired. . . . Such political resurrection is the result of a law
analogous to that which enables elastic bodies to regain their original shape upon removal of the
external force, — and subject to the same exception in case of absolute crushing of the whole
fibre and content." (Taylor, International Public Law, p. 615.)

The argument advanced by the respondent judge in his resolution in support in his conclusion
that the Court of First Instance of Manila presided over by him "has no authority to take
cognizance of, and continue said proceedings (of this case) to final judgment until and unless the
Government of the Commonwealth of the Philippines . . . shall have provided for the transfer of
the jurisdiction of the courts of the now defunct Republic of the Philippines, and the cases
commenced and the left pending therein," is "that said courts were a government alien to the
Commonwealth Government. The laws they enforced were, true enough, laws of the
Commonwealth prior to Japanese occupation, but they had become the laws — and the courts
had become the institutions — of Japan by adoption (U.S. vs. Reiter. 27 F. Cases, No. 16146), as
they became later on the laws and institutions of the Philippine Executive Commission and the
Republic of the Philippines."

The court in the said case of U.S. vs. Reiter did not and could not say that the laws and
institutions of the country occupied if continued by the conqueror or occupant, become the laws
and the courts, by adoption, of the sovereign nation that is militarily occupying the territory.
Because, as already shown, belligerent or military occupation is essentially provisional and does
not serve to transfer the sovereignty over the occupied territory to the occupant. What the court
said was that, if such laws and institutions are continued in use by the occupant, they become his
and derive their force from him, in the sense that he may continue or set them aside. The laws
and institution or courts so continued remain the laws and institutions or courts of the occupied
territory. The laws and the courts of the Philippines, therefore, did not become, by being
continued as required by the law of nations, laws and courts of Japan. The provision of Article
45, section III, of the Hague Conventions of 1907 which prohibits any compulsion of the
population of occupied territory to swear allegiance to the hostile power, "extends to prohibit
everything which would assert or imply a change made by the invader in the legitimate
sovereignty. This duty is neither to innovate in the political life of the occupied districts, nor
needlessly to break the continuity of their legal life. Hence, so far as the courts of justice are
allowed to continue administering the territorial laws, they must be allowed to give their
sentences in the name of the legitimate sovereign " (Westlake, Int. Law, Part II, second ed., p.
102). According to Wheaton, however, the victor need not allow the use of that of the legitimate
government. When in 1870, the Germans in France attempted to violate that rule by ordering,
after the fall of the Emperor Napoleon, the courts of Nancy to administer justice in the name of
the "High German Powers occupying Alsace and Lorraine," upon the ground that the exercise of
their powers in the name of French people and government was at least an implied recognition of
the Republic, the courts refused to obey and suspended their sitting. Germany originally ordered
the use of the name of "High German Powers occupying Alsace and Lorraine," but later offered
to allow use of the name of the Emperor or a compromise. (Wheaton, International Law, War,
7th English ed. 1944, p. 244.)

Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established
continues until changed by the some competent legislative power. It is not change merely by
change of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9,
citing Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on the
Conflict on Laws (Cambridge, 1916, Section 131): "There can no break or interregnum in law.
From the time the law comes into existence with the first-felt corporateness of a primitive people
it must last until the final disappearance of human society. Once created, it persists until a change
take place, and when changed it continues in such changed condition until the next change, and
so forever. Conquest or colonization is impotent to bring law to an end; in spite of change of
constitution, the law continues unchanged until the new sovereign by legislative acts creates a
change."

As courts are creatures of statutes and their existence defends upon that of the laws which create
and confer upon them their jurisdiction, it is evident that such laws, not being a political nature,
are not abrogated by a change of sovereignty, and continue in force "ex proprio vigore" unless
and until repealed by legislative acts. A proclamation that said laws and courts are expressly
continued is not necessary in order that they may continue in force. Such proclamation, if made,
is but a declaration of the intention of respecting and not repealing those laws. Therefore, even
assuming that Japan had legally acquired sovereignty over these Islands, which she had
afterwards transferred to the so-called Republic of the Philippines, and that the laws and the
courts of these Islands had become the courts of Japan, as the said courts of the laws creating and
conferring jurisdiction upon them have continued in force until now, it necessarily follows that
the same courts may continue exercising the same jurisdiction over cases pending therein before
the restoration of the Commonwealth Government, unless and until they are abolished or the
laws creating and conferring jurisdiction upon them are repealed by the said government. As a
consequence, enabling laws or acts providing that proceedings pending in one court be continued
by or transferred to another court, are not required by the mere change of government or
sovereignty. They are necessary only in case the former courts are abolished or their jurisdiction
so change that they can no longer continue taking cognizance of the cases and proceedings
commenced therein, in order that the new courts or the courts having jurisdiction over said cases
may continue the proceedings. When the Spanish sovereignty in the Philippine Islands ceased
and the Islands came into the possession of the United States, the "Audiencia" or Supreme Court
was continued and did not cease to exist, and proceeded to take cognizance of the actions
pending therein upon the cessation of the Spanish sovereignty until the said "Audiencia" or
Supreme Court was abolished, and the Supreme Court created in Chapter II of Act No. 136 was
substituted in lieu thereof. And the Courts of First Instance of the Islands during the Spanish
regime continued taking cognizance of cases pending therein upon the change of sovereignty,
until section 65 of the same Act No. 136 abolished them and created in its Chapter IV the present
Courts of First Instance in substitution of the former. Similarly, no enabling acts were enacted
during the Japanese occupation, but a mere proclamation or order that the courts in the Island
were continued.

On the other hand, during the American regime, when section 78 of Act No. 136 was enacted
abolishing the civil jurisdiction of the provost courts created by the military government of
occupation in the Philippines during the Spanish-American War of 1898, the same section 78
provided for the transfer of all civil actions then pending in the provost courts to the proper
tribunals, that is, to the justices of the peace courts, Court of First Instance, or Supreme Court
having jurisdiction over them according to law. And later on, when the criminal jurisdiction of
provost courts in the City of Manila was abolished by section 3 of Act No. 186, the same section
provided that criminal cases pending therein within the jurisdiction of the municipal court
created by Act No. 183 were transferred to the latter.

That the present courts as the same courts which had been functioning during the Japanese
regime and, therefore, can continue the proceedings in cases pending therein prior to the
restoration of the Commonwealth of the Philippines, is confirmed by Executive Order No. 37
which we have already quoted in support of our conclusion in connection with the second
question. Said Executive Order provides"(1) that the Court of Appeals created and established
under Commonwealth Act No. 3 as amended, be abolished, as it is hereby abolished," and "(2)
that all cases which have heretofore been duly appealed to the Court of Appeals shall be
transmitted to the Supreme Court for final decision. . . ." In so providing, the said Order
considers that the Court of Appeals abolished was the same that existed prior to, and continued
after, the restoration of the Commonwealth Government; for, as we have stated in discussing the
previous question, almost all, if not all, of the cases pending therein, or which had theretofore
(that is, up to March 10, 1945) been duly appealed to said court, must have been cases coming
from the Courts of First Instance during the so-called Republic of the Philippines. If the Court of
Appeals abolished by the said Executive Order was not the same one which had been functioning
during the Republic, but that which had existed up to the time of the Japanese occupation, it
would have provided that all the cases which had, prior to and up to that occupation on January
2, 1942, been dully appealed to the said Court of Appeals shall be transmitted to the Supreme
Court for final decision.

It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment,
the proceedings in cases, not of political complexion, pending therein at the time of the
restoration of the Commonwealth Government.

Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has
jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which involves
civil rights of the parties under the laws of the Commonwealth Government, pending in said
court at the time of the restoration of the said Government; and that the respondent judge of the
court, having refused to act and continue him does a duty resulting from his office as presiding
judge of that court, mandamus is the speedy and adequate remedy in the ordinary course of law,
especially taking into consideration the fact that the question of jurisdiction herein involved does
affect not only this particular case, but many other cases now pending in all the courts of these
Islands.

In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to
the respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of
and continue to final judgment the proceedings in civil case No. 3012 of said court. No
pronouncement as to costs. So ordered.

Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.

CITIZENSHIP

EN BANC

G.R. No. 161434 March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners,

vs.
The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a.
FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents.

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

G.R. No. 161634 March 3, 2004

ZOILO ANTONIO VELEZ, petitioner,

vs.
RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.

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

G. R. No. 161824 March 3, 2004

VICTORINO X. FORNIER, petitioner,

vs.
HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO
KNOWN AS FERNANDO POE JR., respondents.

DECISION

VITUG, J.:

Citizenship is a treasured right conferred on those whom the state believes are deserving of
the privilege. It is a "precious heritage, as well as an inestimable acquisition,"1 that cannot
be taken lightly by anyone - either by those who enjoy it or by those who dispute it.

Before the Court are three consolidated cases, all of which raise a single question of profound
importance to the nation. The issue of citizenship is brought up to challenge the qualifications of
a presidential candidate to hold the highest office of the land. Our people are waiting for the
judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now
one of the main contenders for the presidency, a natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and American colonial roots and
reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a
hybrid of laws and jurisprudence that could be no less than distinctly Filipino.

Antecedent Case Settings

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr.
(hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic
of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the
forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a
natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan"
Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila.

Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner,
versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando
Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before
the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to
cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in
his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth,
according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an
American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a
Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he
could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of
an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two
assertions - first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his
marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe,
married Bessie Kelly only a year after the birth of respondent.

In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in
support of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth
of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez
attesting to her having filed a case for bigamy and concubinage against the father of respondent,
Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English
translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan
F. Poe, 5) a certification issued by the Director of the Records Management and Archives Office,
attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or
Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the
Officer-In-Charge of the Archives Division of the National Archives to the effect that no
available information could be found in the files of the National Archives regarding the birth of
Allan F. Poe.

On his part, respondent, presented twenty-two documentary pieces of evidence, the more
significant ones being - a) a certification issued by Estrella M. Domingo of the Archives Division
of the National Archives that there appeared to be no available information regarding the birth of
Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the
Officer-In-Charge of the Archives Division of the National Archives that no available
information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a
certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the
Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax
Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a
copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract
between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil
Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during
the period of from 1900 until May 1946 were totally destroyed during World War II.

On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days
later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied
on 06 February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the
decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65,
of the Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise
prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution
that would stay the finality and/or execution of the COMELEC resolutions.

The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434,
entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on
Elections, Ronald Allan Kelley Poe (a.k.a. ‘Fernando Poe, Jr.’), and Victorino X. Fornier," and
the other, docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley
Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting
that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court
had original and exclusive jurisdiction to resolve the basic issue on the case.

Jurisdiction of the Court

In G. R. No. 161824

In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due
course to or cancel FPJ’s certificate of candidacy for alleged misrepresentation of a material fact
(i.e., that FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked
Section 78 of the Omnibus Election Code –

"Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A
verified petition seeking to deny due course or to cancel a certificate of candidacy may be
filed by any person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false" –

in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus
Election Code -

"Section 52. Powers and functions of the Commission on Elections. In addition to the
powers and functions conferred upon it by the Constitution, the Commission shall have
exclusive charge of the enforcement and administration of all laws relative to the conduct
of elections for the purpose of ensuring free, orderly and honest elections" -
 and in relation to Article 69 of the Omnibus Election Code which would authorize "any
interested party" to file a verified petition to deny or cancel the certificate of candidacy of
any nuisance candidate.

Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court
per Rule 642 in an action for certiorari under Rule 653 of the Revised Rules of Civil Procedure.
Section 7, Article IX, of the 1987 Constitution also reads –

"Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum, required by the rules of the
Commission or by the Commission itself. Unless otherwise provided by this Constitution
or by law, any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a
copy thereof."

Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is
vested in one Supreme Court and in such lower courts as may be established by law which power
"includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."

It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and
could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our
people of their fundamental right to be fully informed, and to make a proper choice, on who
could or should be elected to occupy the highest government post in the land.

In G. R. No. 161434 and G. R. No. 161634

Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the
provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the
jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the
Supreme Court to instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas,4 as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to
enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral
Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the
Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same."
Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court
to be the members of the tribunal. Although the subsequent adoption of the parliamentary form
of government under the 1973 Constitution might have implicitly affected Republic Act No.
1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section
4, paragraph 7, of the 1987 Constitution.

Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election

contests consist of either an election protest or a quo warranto which, although two distinct
remedies, would have one objective in view, i.e., to dislodge the winning candidate from office.
A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would
support this premise -

"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President of the Philippines.

"Rule 13. How Initiated. - An election contest is initiated by the filing of an election
protest or a petition for quo warranto against the President or Vice-President. An election
protest shall not include a petition for quo warranto. A petition for quo warranto shall not
include an election protest.

"Rule 14. Election Protest. - Only the registered candidate for President or for Vice-
President of the Philippines who received the second or third highest number of votes
may contest the election of the President or the Vice-President, as the case may be, by
filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty
(30) days after the proclamation of the winner."

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the
election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and
not of "candidates" for President or Vice-President. A quo warranto proceeding is generally
defined as being an action against a person who usurps, intrudes into, or unlawfully holds or
exercises a public office.5 In such context, the election contest can only contemplate a post-
election scenario. In Rule 14, only a registered candidate who would have received either the
second or third highest number of votes could file an election protest. This rule again
presupposes a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph
7, of the 1987 Constitution, would not include cases directly brought before it, questioning the
qualifications of a candidate for the presidency or vice-presidency before the elections are held.

Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on
Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley
Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction.
 The Citizenship Issue

Now, to the basic issue; it should be helpful to first give a brief historical background on the
concept of citizenship.

Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in
384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of
justice and in the holding of an office.6 Aristotle saw its significance if only to determine the
constituency of the "State," which he described as being composed of such persons who would
be adequate in number to achieve a self-sufficient existence.7 The concept grew to include one
who would both govern and be governed, for which qualifications like autonomy, judgment and
loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one
hand, and with concomitant obligations, on the other.8 In its ideal setting, a citizen was active in
public life and fundamentally willing to submit his private interests to the general interest of
society.

The concept of citizenship had undergone changes over the centuries. In the 18th century, the
concept was limited, by and large, to civil citizenship, which established the rights necessary for
individual freedom, such as rights to property, personal liberty and justice.9 Its meaning
expanded during the 19th century to include political citizenship, which encompassed the right to
participate in the exercise of political power.10 The 20th century saw the next stage of the
development of social citizenship, which laid emphasis on the right of the citizen to economic
well-being and social security.11 The idea of citizenship has gained expression in the modern
welfare state as it so developed in Western Europe. An ongoing and final stage of development,
in keeping with the rapidly shrinking global village, might well be the internationalization of
citizenship.12

The Local Setting - from Spanish Times to the Present

There was no such term as "Philippine citizens" during the Spanish regime but "subjects of
Spain" or "Spanish subjects."13 In church records, the natives were called 'indios', denoting a low
regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified
during the 19th century but their sheer number made it difficult to point to one comprehensive
law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine
Islands except for those explicitly extended by Royal Decrees.14

Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in
Spain on 16 July 1805 but as to whether the law was extended to the Philippines remained to be
the subject of differing views among experts;15 however, three royal decrees were undisputably
made applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,16
the Royal Decree of 23 August 1868 specifically defining the political status of children born in
the Philippine Islands,17 and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was
expressly made applicable to the Philippines by the Royal Decree of 13 July 1870.18
The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the
express mandate of its Article 89, according to which the provisions of the Ultramar among
which this country was included, would be governed by special laws.19

It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889,
which came out with the first categorical enumeration of who were Spanish citizens. -

"(a) Persons born in Spanish territory,

"(b) Children of a Spanish father or mother, even if they were born outside of Spain,

"(c) Foreigners who have obtained naturalization papers,

"(d) Those who, without such papers, may have become domiciled inhabitants of any
town of the Monarchy."20

The year 1898 was another turning point in Philippine history. Already in the state of decline as a
superpower, Spain was forced to so cede her sole colony in the East to an upcoming world
power, the United States. An accepted principle of international law dictated that a change in
sovereignty, while resulting in an abrogation of all political laws then in force, would have no
effect on civil laws, which would remain virtually intact.

The Treaty of Paris was entered into on 10 December 1898 between Spain and the United
States.21 Under Article IX of the treaty, the civil rights and political status of the native
inhabitants of the territories ceded to the United States would be determined by its Congress -

"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by
the present treaty relinquishes or cedes her sovereignty may remain in such territory or
may remove therefrom, retaining in either event all their rights of property, including the
right to sell or dispose of such property or of its proceeds; and they shall also have the
right to carry on their industry, commerce, and professions, being subject in respect
thereof to such laws as are applicable to foreigners. In case they remain in the territory
they may preserve their allegiance to the Crown of Spain by making, before a court of
record, within a year from the date of the exchange of ratifications of this treaty, a
declaration of their decision to preserve such allegiance; in default of which declaration
they shall be held to have renounced it and to have adopted the nationality of the territory
in which they reside.

Thus –

"The civil rights and political status of the native inhabitants of the territories hereby
ceded to the United States shall be determined by the Congress."22

Upon the ratification of the treaty, and pending legislation by the United States Congress on the
subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did
not become American citizens, they, however, also ceased to be "aliens" under American laws
and were thus issued passports describing them to be citizens of the Philippines entitled to the
protection of the United States.

The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of
1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive
legislation of the Congress of the United States on the Philippines -

".... that all inhabitants of the Philippine Islands continuing to reside therein, who were
Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and
their children born subsequent thereto, shall be deemed and held to be citizens of the
Philippine Islands and as such entitled to the protection of the United States, except such
as shall have elected to preserve their allegiance to the Crown of Spain in accordance
with the provisions of the treaty of peace between the United States and Spain, signed at
Paris, December tenth eighteen hundred and ninety eight."23

Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the
Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken
to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and
3) an inhabitant who obtained Spanish papers on or before 11 April 1899.24

Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01
July 1902, during which period no citizenship law was extant in the Philippines. Weight was
given to the view, articulated in jurisprudential writing at the time, that the common law
principle of jus soli, otherwise also known as the principle of territoriality, operative in the
United States and England, governed those born in the Philippine Archipelago within that
period.25 More about this later.

In 23 March 1912, the Congress of the United States made the following amendment to the
Philippine Bill of 1902 -

"Provided, That the Philippine Legislature is hereby authorized to provide by law for the
acquisition of Philippine citizenship by those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives of other insular possession of the
United States, and such other persons residing in the Philippine Islands who would
become citizens of the United States, under the laws of the United States, if residing
therein."26

With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the
first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor
General in the Philippines when he initially made mention of it in his slogan, "The Philippines
for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated
virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in
1912 -

"That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh
day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their
 children born subsequently thereto, shall be deemed and held to be citizens of the
Philippine Islands, except such as shall have elected to preserve their allegiance to the
Crown of Spain in accordance with the provisions of the treaty of peace between the
United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-
eight and except such others as have since become citizens of some other country;
Provided, That the Philippine Legislature, herein provided for, is hereby authorized to
provide for the acquisition of Philippine citizenship by those natives of the Philippine
Islands who do not come within the foregoing provisions, the natives of the insular
possessions of the United States, and such other persons residing in the Philippine Islands
who are citizens of the United States, or who could become citizens of the United States
under the laws of the United States, if residing therein."

Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of
the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing
in the Philippines on said date, and, 3) since that date, not a citizen of some other country.

While there was, at one brief time, divergent views on whether or not jus soli was a mode of
acquiring citizenship, the 1935 Constitution brought to an end to any such link with common
law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of
Filipino citizenship -

"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -

"(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution

"(2) Those born in the Philippines Islands of foreign parents who, before the adoption of
this Constitution, had been elected to public office in the Philippine Islands.

"(3) Those whose fathers are citizens of the Philippines.

"(4) Those whose mothers are citizens of the Philippines and upon reaching the age of
majority, elect Philippine citizenship.

"(5) Those who are naturalized in accordance with law."

Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law
provisions at the time, which provided that women would automatically lose their Filipino
citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that
effectively incapacitated the women from transmitting their Filipino citizenship to their
legitimate children and required illegitimate children of Filipino mothers to still elect Filipino
citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully
cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973
Constitution crafted the provisions of the new Constitution on citizenship to reflect such
concerns -
 "Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution
of nineteen hundred and thirty-five.

"(4) Those who are naturalized in accordance with law."

For good measure, Section 2 of the same article also further provided that –

"A female citizen of the Philippines who marries an alien retains her Philippine
citizenship, unless by her act or omission she is deemed, under the law to have renounced
her citizenship."

The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for
subsection (3) thereof that aimed to correct the irregular situation generated by the questionable
proviso in the 1935 Constitution.

Section I, Article IV, 1987 Constitution now provides:

"The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and

"(4) Those who are naturalized in accordance with law."

The Case Of FPJ

Section 2, Article VII, of the 1987 Constitution expresses:

"No person may be elected President unless he is a natural-born citizen of the Philippines,
a registered voter, able to read and write, at least forty years of age on the day of the
election, and a resident of the Philippines for at least ten years immediately preceding
such election."
The term "natural-born citizens," is defined to include "those who are citizens of the Philippines
from birth without having to perform any act to acquire or perfect their Philippine citizenship."27

The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the
1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus
soli, res judicata and jus sanguinis28 – had been in vogue. Only two, i.e., jus soli and jus
sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per
Roa vs. Collector of Customs29 (1912), did not last long. With the adoption of the 1935
Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor30 (1947), jus sanguinis
or blood relationship would now become the primary basis of citizenship by birth.

Documentary evidence adduced by petitioner would tend to indicate that the earliest established
direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the
father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in
evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos,
Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of
birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Español
father, Lorenzo Pou, and a mestiza Español mother, Marta Reyes. Introduced by petitioner was
an "uncertified" copy of a supposed certificate of the alleged marriage of Allan F. Poe and
Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley
reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F.
Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley
to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ,
would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years
old, married to Bessie Kelly, an American citizen, twenty-one years old and married.

Considering the reservations made by the parties on the veracity of some of the entries on the
birth certificate of respondent and the marriage certificate of his parents, the only conclusions
that could be drawn with some degree of certainty from the documents would be that -

1. The parents of FPJ were Allan F. Poe and Bessie Kelley;

2. FPJ was born to them on 20 August 1939;

3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;

4. The father of Allan F. Poe was Lorenzo Poe; and

5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born
Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate
of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of
a public officer. The documents have been submitted in evidence by both contending parties
during the proceedings before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for
respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit
"21" for respondent. The death certificate of Lorenzo Pou was submitted by respondent as his
Exhibit "5." While the last two documents were submitted in evidence for respondent, the
admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the
marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the
death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos,
Pangasinan, were all admitted by petitioner, who had utilized those material statements in his
argument. All three documents were certified true copies of the originals.

Section 3, Rule 130, Rules of Court states that -

"Original document must be produced; exceptions. - When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document
itself, except in the following cases:

"x x x xxx xxx

"(d) When the original is a public record in the custody of a public office or is recorded in
a public office."

Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F.
Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their
contents. Section 44, Rule 130, of the Rules of Court provides:

"Entries in official records. Entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated."

The trustworthiness of public documents and the value given to the entries made therein could be
grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty
which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most
such statements, and 4) the publicity of record which makes more likely the prior exposure of
such errors as might have occurred.31

The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the
age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born
sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would
argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such fact in the Records Management and
Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other
place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to
be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to
conclude, or at least to presume, that the place of residence of a person at the time of his death
was also his residence before death. It would be extremely doubtful if the Records Management
and Archives Office would have had complete records of all residents of the Philippines from
1898 to 1902.

Proof of Paternity and Filiation

Under Civil Law.

Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the
child to the father [or mother]) or paternity (relationship or civil status of the father to the child)
of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the
mandatory rules under civil law must be used.

Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up
until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect,
acknowledgment was required to establish filiation or paternity. Acknowledgment was either
judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if
done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a
record of birth, a will, or a public document.32 Complementary to the new code was Act No.
3753 or the Civil Registry Law expressing in Section 5 thereof, that -

"In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly
by the parents of the infant or only by the mother if the father refuses. In the latter case, it
shall not be permissible to state or reveal in the document the name of the father who
refuses to acknowledge the child, or to give therein any information by which such father
could be identified."

In order that the birth certificate could then be utilized to prove voluntary acknowledgment of
filiation or paternity, the certificate was required to be signed or sworn to by the father. The
failure of such requirement rendered the same useless as being an authoritative document of
recognition.33 In Mendoza vs. Mella,34 the Court ruled -

"Since Rodolfo was born in 1935, after the registry law was enacted, the question here
really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy
of the registry record, may be relied upon as sufficient proof of his having been
voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While
it contains the names of both parents, there is no showing that they signed the original, let
alone swore to its contents as required in Section 5 of Act No. 3753. For all that might
have happened, it was not even they or either of them who furnished the data to be
entered in the civil register. Petitioners say that in any event the birth certificate is in the
nature of a public document wherein voluntary recognition of a natural child may also be
made, according to the same Article 131. True enough, but in such a case, there must be a
clear statement in the document that the parent recognizes the child as his or her own."

In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document
was the signature of Allan F. Poe found. There being no will apparently executed, or at least
shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary
recognition remained to be "some other public document." In Pareja vs. Pareja,35 this Court
defined what could constitute such a document as proof of voluntary acknowledgment:

"Under the Spanish Civil Code there are two classes of public documents, those executed
by private individuals which must be authenticated by notaries, and those issued by
competent public officials by reason of their office. The public document pointed out in
Article 131 as one of the means by which recognition may be made belongs to the first
class."

Let us leave it at that for the moment.

The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into
voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a
record of birth, a will, a statement before a court of record or in any authentic writing. Legal
acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child
who was recognized or judicially declared as natural. Compulsory acknowledgment could be
demanded generally in cases when the child had in his favor any evidence to prove filiation.
Unlike an action to claim legitimacy which would last during the lifetime of the child, and might
pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could
only be brought during the lifetime of the presumed parent.

Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to
be an authentic writing for purposes of voluntary recognition, simply as being a genuine or
indubitable writing of the father. The term would include a public instrument (one duly
acknowledged before a notary public or other competent official) or a private writing admitted
by the father to be his.

The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175
provide:

"Art. 172. The filiation of legitimate children is established by any of the following:

"(1) The record of birth appearing in the civil register or a final judgment; or

"(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

"(1) The open and continuous possession of the status of a legitimate child; or

"(2) Any other means allowed by the Rules of Court and special laws.

"Art. 173. The action to claim legitimacy may be brought by the child during his or her
lifetime and shall be transmitted to the heirs should the child die during minority or in a
 state of insanity. In these cases, the heirs shall have a period of five years within which to
institute the action.

"The action already commenced by the child shall survive notwithstanding the death of
either or both of the parties.

"x x x xxx x x x.

"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way
and on the same, evidence as legitimate children.

"The action must be brought within the same period specified in Article 173, except when
the action is based on the second paragraph of Article 172, in which case the action may
be brought during the lifetime of the alleged parent."

The provisions of the Family Code are retroactively applied; Article 256 of the code reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws."

Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:

"We hold that whether Jose was a voluntarily recognized natural child should be decided
under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides
that 'the voluntary recognition of a natural child shall take place according to this Code,
even if the child was born before the effectivity of this body of laws' or before August 30,
1950. Hence, Article 278 may be given retroactive effect."

It should be apparent that the growing trend to liberalize the acknowledgment or recognition of
illegitimate children is an attempt to break away from the traditional idea of keeping well apart
legitimate and non-legitimate relationships within the family in favor of the greater interest and
welfare of the child. The provisions are intended to merely govern the private and personal
affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil
status of the individual would also affect his political rights or, in general, his relationship to the
State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such
provisions must be taken in the context of private relations, the domain of civil law; particularly -

"Civil Law is that branch of law which has for its double purpose the organization of the
family and the regulation of property. It has thus [been] defined as the mass of precepts
which determine and regulate the relations of assistance, authority and obedience among
members of a family, and those which exist among members of a society for the
protection of private interests."37

In Yañez de Barnuevo vs. Fuster,38 the Court has held:

 "In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family
rights and duties, or to the status, condition and legal capacity of persons, govern
Spaniards although they reside in a foreign country; that, in consequence, 'all questions of
a civil nature, such as those dealing with the validity or nullity of the matrimonial bond,
the domicile of the husband and wife, their support, as between them, the separation of
their properties, the rules governing property, marital authority, division of conjugal
property, the classification of their property, legal causes for divorce, the extent of the
latter, the authority to decree it, and, in general, the civil effects of marriage and divorce
upon the persons and properties of the spouses, are questions that are governed
exclusively by the national law of the husband and wife."

The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of

the Civil Code, stating that -

"Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad" -

that explains the need to incorporate in the code a reiteration of the Constitutional provisions on
citizenship. Similarly, citizenship is significant in civil relationships found in different parts of
the Civil Code,39 such as on successional rights and family relations.40 In adoption, for instance,
an adopted child would be considered the child of his adoptive parents and accorded the same
rights as their legitimate child but such legal fiction extended only to define his rights under civil
law41 and not his political status.

Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude
may be traced to the Spanish family and property laws, which, while defining proprietary and
successional rights of members of the family, provided distinctions in the rights of legitimate and
illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of
titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines
uncontaminated by foreign blood was paramount.

These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code,
and the invidious discrimination survived when the Spanish Civil Code became the primary
source of our own Civil Code. Such distinction, however, remains and should remain only in the
sphere of civil law and not unduly impede or impinge on the domain of political law.

The proof of filiation or paternity for purposes of determining his citizenship status should thus
be deemed independent from and not inextricably tied up with that prescribed for civil law
purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although
good law, do not have preclusive effects on matters alien to personal and family relations. The
ordinary rules on evidence could well and should govern. For instance, the matter about pedigree
is not necessarily precluded from being applicable by the Civil Code or Family Code provisions.

Section 39, Rule 130, of the Rules of Court provides -

 "Act or Declaration about pedigree. The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of another person related to him by birth or
marriage, may be received in evidence where it occurred before the controversy, and the
relationship between the two persons is shown by evidence other than such act or
declaration. The word `pedigree’ includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with pedigree."

For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable
to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the
person whose pedigree is in question, (d) declaration must be made before the controversy has
occurred, and (e) the relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such act or declaration.

Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe
submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F.
Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley
and his children (including respondent FPJ) in one house, and as one family -

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton,
California, U.S.A., after being sworn in accordance with law do hereby declare that:

"1. I am the sister of the late Bessie Kelley Poe.

"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly
known in the Philippines as `Fernando Poe, Jr.,’ or `FPJ’.

"4. Ronald Allan Poe `FPJ’ was born on August 20, 1939 at St. Luke's Hospital,
Magdalena Street, Manila.

"x x x xxx xxx

"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were
students at the University of the Philippines in 1936. I was also introduced to Fernando
Poe, Sr., by my sister that same year.

"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

"9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald,
Allan and Fernando II, and myself lived together with our mother at our family's house
on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945,
except for some months between 1943-1944.
 "10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children
after Ronald Allan Poe.

"x x x xxx xxx

"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan
Poe is a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr.

"Done in City of Stockton, California, U.S.A., this 12th day of January 2004.

Ruby Kelley Mangahas Declarant DNA Testing

In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be

difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent could be resorted to. A
positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals,42 this Court has
acknowledged the strong weight of DNA testing -

"Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways
available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage
testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory
has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on
the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father.
The DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of course, being a
novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate
case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts
should apply the results of science when competently obtained in aid of situations presented, since to reject said
result is to deny progress."

Petitioner’s Argument For Jurisprudential Conclusiveness

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his
citizenship to respondent FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to
Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez, making his
subsequent marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The veracity of the
supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the
documentary evidence introduced by no less than respondent himself, consisting of a birth certificate of respondent
and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father and an
American mother who were married to each other a year later, or on 16 September 1940. Birth to unmarried parents
would make FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ so followed the
citizenship of his mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this Court in Morano
vs. Vivo,43 citing Chiongbian vs. de Leo44 and Serra vs. Republic.45

On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states -

"We must analyze these cases and ask what the lis mota was in each of them. If the pronouncement of the
Court on jus sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine
under the rule of stare decisis. But if the pronouncement was irrelevant to the lis mota, the pronouncement
would not be a decision but a mere obiter dictum which did not establish doctrine. I therefore invite the
Court to look closely into these cases.
 "First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It was about a
stepson of a Filipino, a stepson who was the child of a Chinese mother and a Chinese father. The issue was
whether the stepson followed the naturalization of the stepfather. Nothing about jus sanguinis there. The
stepson did not have the blood of the naturalized stepfather.

"Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was
about a legitimate son of a father who had become Filipino by election to public office before the 1935
Constitution pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here.

"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an
illegitimate child of a Chinese father and a Filipino mother. The issue was whether one who was already a
Filipino because of his mother who still needed to be naturalized. There is nothing there about invidious jus
sanguinis.

"Finally, Paa vs. Chan.46 This is a more complicated case. The case was about the citizenship of Quintin
Chan who was the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate
son of a Chinese father and a Filipino mother. Quintin therefore argued that he got his citizenship from
Leoncio, his father. But the Supreme Court said that there was no valid proof that Leoncio was in fact the
son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio was not
Filipino, neither was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not
even a Filipino.

"The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiter
that even if Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino because Quintin was
illegitimate. This statement about Quintin, based on a contrary to fact assumption, was absolutely
unnecessary for the case. x x x It was obiter dictum, pure and simple, simply repeating the obiter dictum in
Morano vs. Vivo.

"x x x xxx xxx

"Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it
would also violate the equal protection clause of the Constitution not once but twice. First, it would make
an illegitimate distinction between a legitimate child and an illegitimate child, and second, it would make
an illegitimate distinction between the illegitimate child of a Filipino father and the illegitimate child of a
Filipino mother.

"The doctrine on constitutionally allowable distinctions was established long ago by People vs. Cayat. 47 I
would grant that the distinction between legitimate children and illegitimate children rests on real
differences. x x x But real differences alone do not justify invidious distinction. Real differences may
justify distinction for one purpose but not for another purpose.

"x x x What is the relevance of legitimacy or illegitimacy to elective public service? What possible state
interest can there be for disqualifying an illegitimate child from becoming a public officer. It was not the
fault of the child that his parents had illicit liaison. Why deprive the child of the fullness of political rights
for no fault of his own? To disqualify an illegitimate child from holding an important public office is to
punish him for the indiscretion of his parents. There is neither justice nor rationality in that. And if there is
neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause
and must be reprobated."

The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and
Dean Martin Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately hinging
solely on pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the
benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the
assumption that the mother had custody, would exercise parental authority and had the duty to support her
illegitimate child. It was to help the child, not to prejudice or discriminate against him.

The fact of the matter – perhaps the most significant consideration – is that the 1935 Constitution, the fundamental
law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is.
Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are
"those whose fathers are citizens of the Philippines." There utterly is no cogent justification to prescribe conditions
or distinctions where there clearly are none provided.

In Sum –

(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G.
R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R.
No. 161824 assails the resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for
lack of merit, the petition in SPA No. 04-003 which has prayed for the disqualification of respondent FPJ
from running for the position of President in the 10 th May 2004 national elections on the contention that
FPJ has committed material representation in his certificate of candidacy by representing himself to be a
natural-born citizen of the Philippines.

(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No. 161434 and
No. 161634 both having been directly elevated to this Court in the latter’s capacity as the only tribunal to
resolve a presidential and vice-presidential election contest under the Constitution. Evidently, the primary
jurisdiction of the Court can directly be invoked only after, not before, the elections are held.

(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the
COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen,
which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been
a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him
from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship
of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old,
Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule,
and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other
evidence, could have well been his place of residence before death, such that Lorenzo Pou would have
benefited from the "en masse Filipinization" that the Philippine Bill had effected in 1902. That citizenship
(of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The
1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all
persons whose fathers are Filipino citizens regardless of whether such children are legitimate or
illegitimate.

(4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-
born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold
that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in
violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has utterly
failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties
to present their position and evidence, and to prove whether or not there has been material
misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC,48 must not only be material,
but also deliberate and willful.

WHEREFORE, the Court RESOLVES to DISMISS –

1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus
Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier,
 Respondents," and G. R. No. 161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan
Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction.

2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and
Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show grave abuse of discretion
on the part of respondent Commission on Elections in dismissing the petition in SPA No. 04-003.

COMMONWEALTH ACT No. 625

AN ACT PROVIDING THE MANNER IN WHICH THE OPTION TO ELECT

PHILIPPINE CITIZENSHIP SHALL BE DECLARED BY A PERSON WHOSE
MOTHER IS A FILIPINO CITIZEN

Be it enacted by the National Assembly of the Philippines:

Section 1. The option to elect Philippine citizenship in accordance with subsection (4), section 1,
Article IV, of the Constitution1 shall be expressed in a statement to be signed and sworn to by the
party concerned before any officer authorized to administer oaths, and shall be filed with the
nearest civil registry. The said party shall accompany the aforesaid statement with the oath of
allegiance to the Constitution and the Government of the Philippines.

Section 2. If the party concerned is absent from the Philippines, he may make the statement
herein authorized before any officer of the Government of the United States2 authorized to
administer oaths, and he shall forward such statement together with his oath of allegiance, to the
Civil Registry of Manila.

Section 3. The civil registrar shall collect as filing fees of the statement, the amount of ten pesos.

Section 4. The penalty of prision correccional, or a fine not exceeding ten thousand pesos, or
both, shall be imposed on anyone found guilty of fraud or falsehood in making the statement
herein prescribed.

Section 5. This Act shall take effect upon its approval.

Approved, June 7, 1941.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18069 May 26, 1962

ALFONSO DY CUENCO, petitioner-appellee,

vs.
THE HONORABLE, THE SECRETARY OF JUSTICE, and
THE HONORABLE, THE COMMISSIONER OF IMMIGRATION, respondents-
appellants.

Platon A. Baysa for petitioner-appellee.

Office of the Solicitor General for respondents-appellants.

CONCEPCION, J.:

Appeal from a decision of the Court of First Instance of Manila. The case is before us for the
main facts have been stipulated and only questions of law are involved in the appeal.

It appears that on May 19, 1951, a counsel for petitioner Alfonso Dy Cuenco wrote to the
Commissioner of Immigration a letter requesting the cancellation of his alien certificate of
registration, upon the ground that he had exercised the right to elect Philippine citizenship
pursuant to Article IV, section I(4) of the Constitution and Commonwealth Act No. 625. Said
election appears in an affidavit dated May 15, 1951, stating, among other things, that petitioner
was born in Dapa, Surigao, on February 16, 1923; that his parents are "Benito Dy Cuenco,
Chinese (now deceased)" and "Julita Duyapit, Filipina, a native of Surigao, Philippines"; that he
is "married to Rosalinda Villanueva, a Filipino," by whom he has four (4) legitimate children;
that he renounces all allegiance to the Republic of China; that he recognizes and accepts the
supreme authority of the Republic of the Philippines and will maintain true faith and allegiance
thereto; and that he will obey, support and defend the Constitution and laws of the Philippines.
On the same date, petitioner, likewise, took the corresponding oath of allegiance to the Republic
of the Philippines.

The Commissioner of Immigration referred the matter to the Secretary of Justice who, on June
18, 1957, rendered an opinion (No. 129) holding that the alleged Philippine citizenship of
petitioner's mother had not been sufficiently established, that said election of Philippine
citizenship by petitioner herein was legally ineffectual and that he did not thereby become a
Filipino citizen. Petitioner sought a rehearing and a reconsideration of said opinion. In the course
of said rehearing he tried to establish that his delay in electing Philippine citizenship was due to
the belief that he was a citizen of the Philippines. Once again, the Commissioner of Immigration
referred the matter to the Secretary of Justice, who denied the petition for reconsideration on
January 27, 1959.

About a year later, or on January 9, 1960, petitioner instituted in the Court of First Instance of
Manila the present action for mandamus against the Secretary of Justice and the Commissioner
of Immigration, to compel them to recognize as valid said election of Philippine citizenship by
petitioner and to cancel his alien's certificate of registration. In their answer to the petition for
mandamus, respondents assailed petitioner's right to said writ, but, after appropriate proceedings,
said court rendered judgment for the petitioner. Hence, this appeal by respondents.

Petitioner's cause of action is based upon Article IV of our Constitution, the pertinent part of
which reads:

SECTION 1. The following are citizens of the Philippines:

xxx xxx xxx

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of
majority, elect Philippine Citizenship.

Pursuant to this provision, two (2) conditions must concur in order that the election of Philippine
citizenship therein mentioned may be effective, namely: (a) the mother of the person making the
election must be a citizen of the Philippines; and (b) said election must be made "upon reaching
the age of majority."

In the case at bar, the only evidence on the political status of petitioner's mother, Julita Duyapat,
consists of a certificate of baptism, stating that Julita Gonzaga was born in General Luna,
Surigao, on July 30, 1881, and that her parents were Marcelino Duyapat and Consolacion
Gonzaga and a picture showing that she has the features of a Filipina and is attired in the typical
dress of a Filipina. Considering that the writ of mandamus will issue, not to control the exercise
of judgment in the construction of a law and the application of the facts thereto (Policarpio vs.
Veterans Board, 52 Off. Gaz., 6178; Behn, Meyer & Co. vs. Autholty, 51 Phil. 796), but merely
to exact compliance with a clear legal duty resulting from an office trust or station (Viuda e
Hijos de C. Zamora vs. Wright, 53 Phil. 613; Ng Gioc Lin vs. Secretary of Foreign Affairs, 47
Off. Gaz., 5112), we are not prepared to hold that the Secretary of Justice erred in finding that
said proof is insufficient to establish that petitioner's mother was a citizen of the Philippines.

Regardless of the foregoing, petitioner was born on February 16, 1923. He became of age on
February 16, 1944. His election of citizenship was made on May 15, 1951, when he was over
twenty-eight (28) years of age, or over seven (7) years after he had reached the age of majority. It
is clear that said election has not been made "upon reaching the age of majority."

It is true that this clause has been construed to mean a reasonable time after reaching the age of
majority, and that the Secretary of Justice has ruled that three (3) years is the reasonable time to
elect Philippine citizenship under the constitutional provision adverted to above, which period
may be extended under certain circumstances, as when the person concerned has always
considered himself a Filipino. For this reason, petitioner introduced evidence to the effect that he
is referred to as a Filipino in his birth certificate, in his marriage contract and in the birth
certificates of his children; that he married a Filipina; and that he enlisted in the Philippine
guerrilla forces in December, 1942.1äwphï1.ñët

It should be noted, however, that he joined a unit of Chinese volunteers and that he registered
himself in the Bureau of Immigration as a Chinese. Moreover, it appears that, as early, at least, as
1947, petitioner knew that he had to make a formal election, if he wanted to be a citizen of the
Philippines, and yet he did not do so until four (4) years later, or in May 1951. The reasons given
by him for such delay were his alleged financial difficulties and the illness of members of his
family. We agree with the Secretary of Justice that such explanation is patently insufficient to
excuse said delay or to warrant extension of the period to elect Philippine citizenship.

WHEREFORE, the decision appealed from is hereby reversed, and another one shall be entered
dismissing the petition, with costs against petitioner. It is so ordered.

Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes and Dizon, JJ., concur.
Barrera, J., took no part.
Bengzon, C.J., is on leave.

Congress of the Philippines

Eleventh Congress

REPUBLIC ACT NO. 9139 June 08, 2001

AN ACT PROVIDING FOR THE ACQUISITION OF PHILIPPINE CITIZENSHIP FOR

CERTAIN ALIENS BY ADMINISTRATIVE NATURALIZATION AND FOR OTHER
PURPOSES

Be it enacted by the Senate and the House of Representatives of the Philippines in Congress
assembled:

Section 1. Short Title. - This Act shall be known as "The Administrative Naturalization Law of
2000."

Section 2. Declaration of Policy. - The State shall control and regulate the admission and
integration of aliens into its territory and body politic including the grant of citizenship to aliens.
Towards this end, aliens born and residing in the Philippines may be granted Philippine
citizenship by administrative proceedings subject to certain requirements dictated by national
security and interest.

Section 3. Qualifications. - Subject to the provisions of the succeeding section, any person
desiring to avail of the benefits of this Act must meet the following qualifications:

(a) The applicant must be born in the Philippines and residing therein since birth;

(b) The applicant must not be less than eighteen (18) years of age, at the time of filing of his/her
petition;

(c) The applicant must be of good moral character and believes in the underlying principles of
the Constitution, and must have conducted himself/herself in a proper and irreproachable manner
during his/her entire period of residence in the Philippines in his relation with the duly
constituted government as well as with the community in which he/she is living;

(d) The applicant must have received his/her primary and secondary education in any public
school or private educational institution dully recognized by the Department of Education,
Culture and Sports, where Philippine history, government and civics are taught and prescribed as
part of the school curriculum and where enrollment is not limited to any race or nationality:
Provided, That should he/she have minor children of school age, he/she must have enrolled them
in similar schools;

(e) The applicant must have a known trade, business, profession or lawful occupation, from
which he/she derives income sufficient for his/her support and if he/she is married and/or has
dependents, also that of his/her family: Provided, however, That this shall not apply to applicants
who are college degree holders but are unable to practice their profession because they are
disqualified to do so by reason of their citizenship;

(f) The applicant must be able to read, write and speak Filipino or any of the dialects of the
Philippines; and

(g) The applicant must have mingled with the Filipinos and evinced a sincere desire to learn and
embrace the customs, traditions and ideals of the Filipino people.

Section 4. Disqualifications, - The following are not qualified to be naturalized as Filipino

citizens under this Act:

(a) Those opposed to organized government or affiliated with any association of group of
persons who uphold and teach doctrines opposing all organized governments;

(b) Those defending or teaching the necessity of or propriety of violence, personal assault or
assassination for the success or predominance of their ideas;

(c) Polygamists or believers in the practice of polygamy;

(d) Those convicted of crimes involving moral turpitude;

(e) Those suffering from mental alienation or incurable contagious diseases;

(f) Those who, during the period of their residence in the Philippines, have not mingled socially
with Filipinos, or who have not evinced a sincere desire to learn and embrace the customs,
traditions and ideals of the Filipinos;

(g) Citizens or subjects with whom the Philippines is at war, during the period of such war; and

(h) Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be
naturalized citizens or subjects thereof.

Section 5. Petition for Citizenship. - (1) Any person desiring to acquire Philippine citizenship
under this Act shall file with the Special Committee on Naturalization created under Section 6
hereof, a petition of five (5) copies legibly typed and signed, thumbmarked and verified by
him/her, with the latter's passport-sized photograph attached to each copy of the petition, and
setting forth the following:

(a) The petitioner's name and surname, and any other name he/she has used or by which he/she is
known;

(b) The petitioner's present and former places of residence;

(c) The petitioner's place and date of birth, the names and citizenship of his/her parents and their
residences;

(d) The petitioner's trade, business, profession or occupation, and if married, also that of his/her
spouse;

(e) Whether the petitioner is single or married or his/her marriage is annulled. If married,
petitioner shall state the date and place of his/her marriage, and the name, date of birth,
birthplace, citizenship and residence of his/her spouse; and if his marriage is annulled, the date of
decree of annulment of marriage and the court which granted the same;

(f) If the petitioner has children, the name, date and birthplace and residences of his/her children
;

(g) A declaration that the petitioner possesses all the qualifications and none of the
disqualifications under this Act;

(h) A declaration that the petitioner shall never be a public charge; and

(i) A declaration that it is the petitioner's true and honest intention to acquire Philippine
citizenship and to renounce absolutely and forever any prince, potentate, State or sovereign, and
particularly the country of which the applicant is a citizen or subject.
(2) The application shall be accompanied by:

(a) Duplicate original or certified photocopies of petitioner's birth certificate;

(b) Duplicate original or certified photocopies of petitioner's alien certificate of registration and
native born certificate of residence;

(c) Duplicate original or certified photocopies of petitioner's marriage certified, if married, or the
death certificate of his spouse, if widowed, or the court decree annulling his marriage, if such
was the fact;

(d) Duplicate original or certified photocopies of birth certificates, alien certificate of registration
or native born certificate of residence if any, of petitioner's minor children, wherever applicable;

(e) Affidavit of financial capacity by the petitioner, and sworn statements on the good moral
character of the petitioner by at least two (2) Filipino citizens of good reputation in his/her place
of residence stating that they have personally known the petitioner for at least a period of ten
(10) years and that said petitioner has in their own opinion all the qualifications necessary to
become a citizen of the Philippines and is not in any way disqualified under the provisions of this
Act;

(f) A medical certificate that petitioner is not a user of prohibited drugs or otherwise a drug
dependent and that he/she is not afflicted with acquired immune deficiency syndrome (AIDS);

(g) School diploma and transcript of records of the petitioner in the schools he attended in the
Philippines. Should the petitioner have minor children, a certification that his children are
enrolled in a school where Philippine history, government and civics are taught and are part of
the curriculum; and

(h) If gainfully employed, the income tax return for the past three (3) years.

Section 6. Special Committee on Naturalization. - There shall be constituted a Special

Committee on Naturalization herein referred to as the "Committee", with the Solicitor General as
chairman, the Secretary of Foreign Affairs, or his representative, and the National Security
Adviser, as members, with the power to approve, deny or reject applications for naturalization as
provided in this Act.

The Committee shall meet, as often as practicable, to consider applications for naturalization. For
this purpose, the chairman and members shall receive an honorarium of Two thousand pesos
(P2,000.00) and One thousand five hundred pesos (P1,500.00), respectively, per meeting
attended.

Section 7. Powers/Functions of the Special Committee on Naturalization. - An alien who

believes that he has all the qualifications, and none of the disqualifications, may file an
application for naturalization with the secretariat of the Special Committee on Naturalization,
and a processing fee of Forty thousand pesos (P40,000.00). Thereafter, the petition shall be
stamped to indicate the date of filing and a corresponding docket number. Within fifteen (15)
days from the receipt of the petition, the Committee shall determine whether the petition is
complete in substance and in form. If such petition is complete, the Committee shall immediately
publish pertinent portions of the petition indicating the name, qualifications and other personal
circumstances of the applicant, once a week for three (3) consecutive weeks in a newspaper of
general circulation, and have copies of the petition posted in any public or conspicuous area. The
Committee shall immediately furnish the Department of Foreign Affairs (DFA), the Bureau of
Immigration (BI), the civil registrar of the petitioner's place of residence and tile National Bureau
of Investigation (NBI) copies of the petition and its supporting documents. These agencies shall
have copies of the petition posted in any public or conspicuous area in their buildings, offices
and premises, and shall, within thirty (30) days from the receipt of the petition, submit to the
Committee a report stating whether or not petitioner has any derogatory record on file or any
such relevant and material information which might be adverse to petitioner's application for
citizenship.

If the petition is found by the Committee to be wanting in substance and form, the petition shall
be dismissed without prejudice.

Section 8. Approval or Disapproval of the Petition. - Within sixty (60) days from receipt of the
report of the agencies which were furnished a copy of the petition or the date of the last
publication of the petition, whichever comes in later, the Committee shall consider and review all
relevant and material information it has received pertaining to the petition, and may, for the
purpose call the petitioner for interview to ascertain his/her identity, the authenticity of the
petition and its annexes, and to determine the truthfulness of the statements and declarations
made in the petition and its annexes.

If the Committee shall have received any information adverse to the petition, the Committee
shall allow the petitioner to answer, explain or refute the information.

Thereafter, if the Committee believes, in view of the facts before it, that the petitioner has all the
qualifications and none of the disqualifications required for Philippine citizenship under this Act,
it shall approve the petition and henceforth, notify the petitioner of the fact of such approval.
Otherwise, the Committee shall disapprove the same.

Section 9. Decree of Naturalization and Naturalization Processing Fee. -Within thirty (30) days
from the receipt of the notice of the approval of his/her petition, the applicant shall pay to the
Committee a naturalization fee of One hundred thousand pesos (P100,000.00) payable as
follows: Fifty thousand pesos (P50,000.00) upon the approval of the petition and Fifty thousand
pesos (P50,000.00) upon the taking of the oath of allegiance to the Republic of the Philippines,
forthwith, a certificate of naturalization shall be issued. Within sixty (60) days from the issuance
of the certificate, the petitioner shall take an oath of allegiance in the proper forum upon proof of
payment of the required naturalization processing fee and certificate of naturalization. Should the
applicant fail to take the abovementioned oath of allegiance within said period of time, the
approval of the petition shall be deemed abandoned.
Section 10. Duty of the Bureau of Immigration. - Within five (5) days after the applicant has
taken his oath of allegiance as required in the preceding section, the BI shall forward a copy of
the petitioner's oath to the proper local civil registrar. Thereafter, the BI shall cancel the alien
certificates of registration of the applicant.

Section 11. Status of Alien Wife and Minor Children. - After the approval of the petition for
administrative naturalization in cancellation of applicant's alien certificate of registration,
applicant's alien lawful wife and minor children may file a petition for cancellation of their alien
certificates of registration with the Committee subject to the payment of the filing fee of Twenty
thousand pesos (P20,000.00) and naturalization fee of Forty thousand pesos (P40,000.00)
payable as follows: Twenty thousand pesos (P20,000.00) upon the approval of the petition and
Twenty thousand pesos (P20,000.00) upon the taking of the oath of allegiance to the Republic of
the Philippines.

Section 12. Status of Alien Husband and Minor Children. - If the applicant is a married woman,
the approval of her petition for administrative naturalization will not benefit her alien husband
but her minor children may file a petition for cancellation of their alien certificates of registration
with the BI subject to the requirements of existing laws.

Section 13. Cancellation of the Certificate of Naturalization. - The Special Committee may
cancel certificates of naturalization issued under this Act in the following cases:

(a) If it finds that the naturalized person or his duly authorized representative made any false
statement or misrepresentation or committed any violation of law, rules and regulations in
connection with the petition for naturalization, or if he otherwise obtains Philippine citizenship
fraudulently or illegally, the certificate of naturalization shall be cancelled;

(b) If the naturalized person or his wife, or any or his minor children who acquire Filipino
citizenship by virtue of his naturalization shall, within five (5) years next following the grant of
Philippine citizenship, establish permanent residence in a foreign country, that individual's
certificate of naturalization or acquired citizenship shall be cancelled or revoked: Provided, That
the fact of such person's remaining for more than one (1) year in his country of origin, or two (2)
years in any foreign country, shall be considered prima facie evidence of intent to permanently
reside therein;

(c) If the naturalized person or his wife or child with acquired citizenship allows himself or
herself to be used as a dummy in violation of any constitutional or legal provision requiring
Philippine citizenship as a condition for the exercise, use or enjoyment of a right, franchise or
privilege, the certificate of naturalization or acquired citizenship shall be cancelled or revoked;
and

(d) If the naturalized person or his wife or child with acquired citizenship commits any act
inimical to national security, the certificate of naturalization or acquired citizenship shall be
cancelled or revoked.
In case the naturalized person holds any hereditary title, or belong to any order of nobility, he
shall make an express renunciation of his title or membership in this order of nobility before the
Special Committee or its duly authorized representative, and such renunciation shall be included
in the records of his application for citizenship.

Section 14. Penalties. - Any person who shall fraudulently make, falsify, forge, change, alter, or
cause or aid any person to do the same, or who shall purposely aid and assist in falsely making,
forging, falsifying, changing or altering a naturalization certificate issued under this proceeding
for the purpose of making use thereof, or in order that the same may be used by another person
or persons, and any person who shall purposely aid and assist another in obtaining a
naturalization certificate in violation of this Act, shall be punished by a fine of not more than
Five hundred thousand pesos (P500,OOO.OO) and by imprisonment for not more than five (5)
years, and in the case that the person convicted is a naturalized citizen, his certificate of
naturalization shall, if not earlier cancelled by the Special Committee, be ordered cancelled.

Section 15. Any person who failed to register his/her birth with the concerned city or municipal
civil registrar may, within two (2) years from the effectivity of this Act, file a petition for the
acquisition of the Philippine citizenship: Provided, That the applicant possesses all the
qualifications and none of the disqualifications under this Act and subject to the requirements of
existing laws.

Section 16. Special Disposition of the Filing Fee. - An amount equivalent to twenty five percent
(25%) of the filing fee to be paid by the applicants pursuant to Section 7 hereof shall accrue to
the University of the Philippines Law Center and another twenty-five percent (25%) shall be
allotted for the publication of the Journal of the House of Representatives. Said amount shall be
treated as receipts automatically appropriated.

Section 17. Implementing Rules and Regulations. - The Special Committee on Naturalization is
hereby authorized to promulgate such rules and regulations as may be needed for the proper
implementation of the provisions of this Act.

Section 18. Repealing Clause. -All provisions of existing laws, orders, decrees, rules and
regulations contrary to or inconsistent with this Act are hereby repealed or modified accordingly.

Section 19. Separability CIause. - If any part, section or provision of this Act is declared invalid
or unconstitutional, the part, section or provision not affected thereby shall continue to be in
force and effect.

Section 20. Effectivity Clause. - This Act shall take effect after fifteen (15) days following its
publication in at least two (2) newspapers of general circulation.

Approved,

(Sgd)
AQUILINO Q. PIMENTEL JR.
President of the Senate

(Sgd)

FELICIANO BELMONTE JR.

Speaker of the House of Representatives

(Sgd)

LUTGARDO B. BARBO
Secretary of the Senate

(Sgd)

ROBERTO P. NAZARENO
Secretary General
House of Representatives

Approved: June 08, 2001

(Sgd)

GLORIA MACAPAGAL-ARROYO
President of the Philippines
Consti II case digest: EDISON SO, Petitioner, vs. REPUBLIC OF THE
PHILIPPINES, Respondent.

Facts:
He was born on February 17, 1982, in Manila; he is a Chinese citizen who has lived in No. 528 Lavezares
St., Binondo, Manila, since birth; as an employee, he derives an average annual income of
around P100,000.00 with free board and lodging and other benefits; he is single, able to speak and write
English, Chinese and Tagalog; he is exempt from the filing of Declaration of Intention to become a citizen
of the Philippines pursuant to Section 6 of Commonwealth Act (C.A.) No. 473.
On March 22, 2002, the RTC issued an Order8 setting the petition for hearing at 8:30 a.m. of December
12 and 17, 2002 during which all persons concerned were enjoined to show cause, if any, why the
petition should not be granted. The entire petition and its annexes, including the order, were ordered
published once a week for three consecutive weeks in the Official Gazette and also in a newspaper of
general circulation in the City of Manila. The RTC likewise ordered that copies of the petition and notice
be posted in public and conspicuous places in the Manila City Hall Building.9
During the hearing, petitioner presented Atty. Adasa, Jr. who testified that he came to know petitioner
in 1991 as the legal consultant and adviser of the So family’s business. He would usually attend parties
and other social functions hosted by petitioner’s family. He knew petitioner to be obedient,
hardworking, and possessed of good moral character, including all the qualifications mandated by law.
Another witness for petitioner, Mark Salcedo, testified that he has known petitioner for ten (10) years;
they first met at a birthday party in 1991. He and petitioner were classmates at the University of Santo
Tomas (UST) where they took up Pharmacy. Petitioner was a member of some school organizations and
mingled well with friends.
The RTC granted the petition on June 4, 2003.
Respondent Republic of the Philippines, through the Office of the Solicitor General (OSG), appealed the
decision to the CA on the following grounds:
Issue:
W/N Edison So did meet all the qualification needed to be a naturalized Filipino citizen.
Ruling:
The petition is denied for lack of merit.
Naturalization signifies the act of formally adopting a foreigner into the political body of a nation by
clothing him or her with the privileges of a citizen.44 Under current and existing laws, there are three
ways by which an alien may become a citizen by naturalization: (a) administrative naturalization
pursuant to R.A. No. 9139; (b) judicial naturalization pursuant to C.A. No. 473, as amended; and (c)
legislative naturalization in the form of a law enacted by Congress bestowing Philippine citizenship to an
alien.
First. C.A. No. 473 and R.A. No. 9139 are separate and distinct laws – the former covers all aliens
regardless of class while the latter covers native-born aliens who lived here in the Philippines all their
lives, who never saw any other country and all along thought that they were Filipinos; who have
demonstrated love and loyalty to the Philippines and affinity to the customs and traditions.52 To
reiterate, the intention of the legislature in enacting R.A. No. 9139 was to make the process of acquiring
Philippine citizenship less tedious, less technical and more encouraging which is administrative rather
than judicial in nature. Thus, although the legislature believes that there is a need to liberalize the
naturalization law of the Philippines, there is nothing from which it can be inferred that C.A. No. 473 was
intended to be amended or repealed by R.A. No. 9139. What the legislature had in mind was merely to
prescribe another mode of acquiring Philippine citizenship which may be availed of by native born
aliens. The only implication is that, a native born alien has the choice to apply for judicial or
administrative naturalization, subject to the prescribed qualifications and disqualifications.
In naturalization proceedings, it is the burden of the applicant to prove not only his own good
moral character but also the good moral character of his/her witnesses, who must be credible
persons.56 Within the purview of the naturalization law, a "credible person" is not only an
individual who has not been previously convicted of a crime; who is not a police character and
has no police record; who has not perjured in the past; or whose affidavit or testimony is not
incredible. What must be credible is not the declaration made but the person making it. This
implies that such person must have a good standing in the community; that he is known to be
honest and upright; that he is reputed to be trustworthy and reliable; and that his word may be
taken on its face value, as a good warranty of the applicant’s worthiness.
e do not agree with petitioner’s argument that respondent is precluded from questioning the RTC
decision because of its failure to oppose the petition. A naturalization proceeding is not a judicial
adversary proceeding, and the decision rendered therein does not constitute res judicata. A
certificate of naturalization may be cancelled if it is subsequently discovered that the applicant
obtained it by misleading the court upon any material fact. Law and jurisprudence even authorize
the cancellation of a certificate of naturalization upon grounds or conditions arising subsequent
to the granting of the certificate.59 If the government can challenge a final grant of citizenship,
with more reason can it appeal the decision of the RTC within the reglementary period despite its
failure to oppose the petition before the lower court.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.

EN BANC

[G.R. No. 135083. May 26, 1999]

ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the

COMMISSION ON ELECTIONS, respondents.
DECISION

MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for
vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V.
Daza III. The results of the election were as follows:

Eduardo B. Manzano 103,853

Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275i[1]

The proclamation of private respondent was suspended in view of a pending petition for
disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a
citizen of the Philippines but of the United States.

In its resolution, dated May 7, 1998,ii[2] the Second Division of the COMELEC granted the
petition of Mamaril and ordered the cancellation of the certificate of candidacy of private
respondent on the ground that he is a dual citizen and, under 40(d) of the Local Government
Code, persons with dual citizenship are disqualified from running for any elective position. The
COMELECs Second Division said:

What is presented before the Commission is a petition for disqualification of Eduardo Barrios
Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11, 1998
elections. The petition is based on the ground that the respondent is an American citizen based
on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino
citizen.

In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered
as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-
31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father
and a Filipino mother. He was born in the United States, San Francisco, California, on
September 14, 1955, and is considered an American citizen under US Laws. But notwithstanding
his registration as an American citizen, he did not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and
a US citizen. In other words, he holds dual citizenship.

The question presented is whether under our laws, he is disqualified from the position for which
he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected?

Under Section 40(d) of the Local Government Code, those holding dual citizenship are
disqualified from running for any elective local position.

WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano
DISQUALIFIED as candidate for Vice-Mayor of Makati City.
On May 8, 1998, private respondent filed a motion for reconsideration.iii[3] The motion
remained pending even until after the election held on May 11, 1998.

Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the
COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but
suspended the proclamation of the winner.

On May 19, 1998, petitioner sought to intervene in the case for disqualification.iv[4] Petitioners
motion was opposed by private respondent.

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its
resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed
the ruling of its Second Division and declared private respondent qualified to run for vice mayor
of the City of Makati in the May 11, 1998 elections.v[5] The pertinent portions of the resolution
of the COMELEC en banc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California,
U.S.A. He acquired US citizenship by operation of the United States Constitution and laws under
the principle of jus soli.

He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as
his father and mother were Filipinos at the time of his birth. At the age of six (6), his parents
brought him to the Philippines using an American passport as travel document. His parents also
registered him as an alien with the Philippine Bureau of Immigration. He was issued an alien
certificate of registration. This, however, did not result in the loss of his Philippine citizenship, as
he did not renounce Philippine citizenship and did not take an oath of allegiance to the United
States.

It is an undisputed fact that when respondent attained the age of majority, he registered himself
as a voter, and voted in the elections of 1992, 1995 and 1998, which effectively renounced his
US citizenship under American law. Under Philippine law, he no longer had U.S. citizenship.

At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on
May 7, 1998, was not yet final. Respondent Manzano obtained the highest number of votes
among the candidates for vice-mayor of Makati City, garnering one hundred three thousand eight
hundred fifty three (103,853) votes over his closest rival, Ernesto S. Mercado, who obtained one
hundred thousand eight hundred ninety four (100,894) votes, or a margin of two thousand nine
hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand
two hundred seventy five (54,275) votes. In applying election laws, it would be far better to err
in favor of the popular choice than be embroiled in complex legal issues involving private
international law which may well be settled before the highest court (Cf. Frivaldo vs.
Commission on Elections, 257 SCRA 727).

WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second
Division, adopted on May 7, 1998, ordering the cancellation of the respondents certificate of
candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the
position of vice-mayor of Makati City in the May 11, 1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper
notice to the parties, to reconvene and proclaim the respondent Eduardo Luis Barrios Manzano
as the winning candidate for vice-mayor of Makati City.

Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of
August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati.

This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en
banc and to declare private respondent disqualified to hold the office of vice mayor of Makati
City. Petitioner contends that

[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen when he:

1. He renounced his U.S. citizenship when he attained the age of majority when he was
already 37 years old; and,

2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and
voted in the elections of 1992, 1995 and 1998.

B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City
of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted
on 7 May 1998 was not yet final so that, effectively, petitioner may not be declared the winner
even assuming that Manzano is disqualified to run for and hold the elective office of Vice-Mayor
of the City of Makati.

We first consider the threshold procedural issue raised by private respondent Manzano whether
petitioner Mercado has personality to bring this suit considering that he was not an original party
in the case for disqualification filed by Ernesto Mamaril nor was petitioners motion for leave to
intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the
COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot
bring this suit to set aside the ruling denying his motion for intervention:

Section 1. When proper and when may be permitted to intervene. Any person allowed to initiate
an action or proceeding may, before or during the trial of an action or proceeding, be permitted
by the Commission, in its discretion to intervene in such action or proceeding, if he has legal
interest in the matter in litigation, or in the success of either of the parties, or an interest against
both, or when he is so situated as to be adversely affected by such action or proceeding.

....

Section 3. Discretion of Commission. In allowing or disallowing a motion for intervention, the

Commission or the Division, in the exercise of its discretion, 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 intervenors rights may be fully protected in a separate action or
proceeding.

Private respondent argues that petitioner has neither legal interest in the matter in litigation nor
an interest to protect because he is a defeated candidate for the vice-mayoralty post of Makati
City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private
respondent be ultimately disqualified by final and executory judgment.

The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the
proceedings before the COMELEC, there had already been a proclamation of the results of the
election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out
only second to private respondent. The fact, however, is that there had been no proclamation at
that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from
the race at the time he sought to intervene. The rule in Labo v. COMELEC,vi[6] reiterated in
several cases,vii[7] only applies to cases in which the election of the respondent is contested, and
the question is whether one who placed second to the disqualified candidate may be declared the
winner. In the present case, at the time petitioner filed a Motion for Leave to File Intervention on
May 20, 1998, there had been no proclamation of the winner, and petitioners purpose was
precisely to have private respondent disqualified from running for [an] elective local position
under 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification
proceedings), a registered voter of Makati City, was competent to bring the action, so was
petitioner since the latter was a rival candidate for vice mayor of Makati City.

Nor is petitioners interest in the matter in litigation any less because he filed a motion for
intervention only on May 20, 1998, after private respondent had been shown to have garnered
the highest number of votes among the candidates for vice mayor. That petitioner had a right to
intervene at that stage of the proceedings for the disqualification against private respondent is
clear from 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which
provides:

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.
Under this provision, intervention may be allowed in proceedings for disqualification even after
election if there has yet been no final judgment rendered.

The failure of the COMELEC en banc to resolve petitioners motion for intervention was
tantamount to a denial of the motion, justifying petitioner in filing the instant petition for
certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition
properly deals not only with the denial of petitioners motion for intervention but also with the
substantive issues respecting private respondents alleged disqualification on the ground of dual
citizenship.

This brings us to the next question, namely, whether private respondent Manzano possesses dual
citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati
City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under 40 of the Local
Government Code of 1991 (R.A. No. 7160), which declares as disqualified from running for any
elective local position: . . . (d) Those with dual citizenship. This provision is incorporated in the
Charter of the City of Makati.viii[8]

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with
him in this case, contends that through 40(d) of the Local Government Code, Congress has
command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold
local elective office.

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.ix[9] 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 latters 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 individuals volition.

With respect to dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law. This provision was
included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained
its necessity as follows:x[10]

. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have
circulated a memorandum to the Bernas Committee according to which a dual allegiance  and I
reiterate a dual allegiance  is larger and more threatening than that of mere double citizenship
which is seldom intentional and, perhaps, never insidious. That is often a function of the accident
of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at all.

What we would like the Committee to consider is to take constitutional cognizance of the
problem of dual allegiance. For example, we all know what happens in the triennial elections of
the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600 chapters
all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely known is the
fact that the Filipino-Chinese community is represented in the Legislative Yuan of the Republic
of China in Taiwan. And until recently, the sponsor might recall, in Mainland China in the
Peoples Republic of China, they have the Associated Legislative Council for overseas Chinese
wherein all of Southeast Asia including some European and Latin countries were represented,
which was dissolved after several years because of diplomatic friction. At that time, the Filipino-
Chinese were also represented in that Overseas Council.

When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of
Filipinos, of citizens who are already Filipinos but who, by their acts, may be said to be bound
by a second allegiance, either to Peking or Taiwan. I also took close note of the concern
expressed by some Commissioners yesterday, including Commissioner Villacorta, who were
concerned about the lack of guarantees of thorough assimilation, and especially Commissioner
Concepcion who has always been worried about minority claims on our natural resources.

Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or
Malaysia, and this is already happening. Some of the great commercial places in downtown
Taipei are Filipino-owned, owned by Filipino-Chinese it is of common knowledge in Manila. It
can mean a tragic capital outflow when we have to endure a capital famine which also means
economic stagnation, worsening unemployment and social unrest.

And so, this is exactly what we ask that the Committee kindly consider incorporating a new
section, probably Section 5, in the article on Citizenship which will read as follows: DUAL
ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH
ACCORDING TO LAW.

In another session of the Commission, Ople spoke on the problem of these citizens with dual
allegiance, thus:xi[11]

. . . A significant number of Commissioners expressed their concern about dual citizenship in the
sense that it implies a double allegiance under a double sovereignty which some of us who spoke
then in a freewheeling debate thought would be repugnant to the sovereignty which pervades the
Constitution and to citizenship itself which implies a uniqueness and which elsewhere in the
Constitution is defined in terms of rights and obligations exclusive to that citizenship including,
of course, the obligation to rise to the defense of the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern for national security. In the course of those
debates, I think some noted the fact that as a result of the wave of naturalizations since the
decision to establish diplomatic relations with the Peoples Republic of China was made in 1975,
a good number of these naturalized Filipinos still routinely go to Taipei every October 10; and it
is asserted that some of them do renew their oath of allegiance to a foreign government maybe
just to enter into the spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is
commemorated. And so, I have detected a genuine and deep concern about double citizenship,
with its attendant risk of double allegiance which is repugnant to our sovereignty and national
security. I appreciate what the Committee said that this could be left to the determination of a
future legislature. But considering the scale of the problem, the real impact on the security of this
country, arising from, let us say, potentially great numbers of double citizens professing double
allegiance, will the Committee entertain a proposed amendment at the proper time that will
prohibit, in effect, or regulate double citizenship?

Clearly, in 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 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.xii[12]

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:xiii[13]
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.

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 as 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 Gentlemans
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.

This is similar to the requirement that an applicant for naturalization must renounce all allegiance
and fidelity to any foreign prince, potentate, state, or sovereigntyxiv[14] of which at the time he
is a subject or citizen before he can be issued a certificate of naturalization as a citizen of the
Philippines. In Parado v. Republic,xv[15] it was held:

[W]hen a person applying for citizenship by naturalization takes an oath that he renounces his
loyalty to any other country or government and solemnly declares that he owes his allegiance to
the Republic of the Philippines, the condition imposed by law is satisfied and complied with. The
determination whether such renunciation is valid or fully complies with the provisions of our
Naturalization Law lies within the province and is an exclusive prerogative of our courts. The
latter should apply the law duly enacted by the legislative department of the Republic. No
foreign law may or should interfere with its operation and application. If the requirement of the
Chinese Law of Nationality were to be read into our Naturalization Law, we would be applying
not what our legislative department has deemed it wise to require, but what a foreign government
has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and
at all cost. It would be a brazen encroachment upon the sovereign will and power of the people
of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4,
1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while
the United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a
national both of the Philippines and of the United States. However, the COMELEC en banc held
that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent
effectively renounced his U.S. citizenship under American law, so that now he is solely a
Philippine national.

Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not
sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made
when private respondent was already 37 years old, it was ineffective as it should have been made
when he reached the age of majority.

In holding that by voting in Philippine elections private respondent renounced his American
citizenship, the COMELEC must have in mind 349 of the Immigration and Nationality Act of the
United States, which provided that A person who is a national of the United States, whether by
birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a
foreign state or participating in an election or plebiscite to determine the sovereignty over foreign
territory. To be sure this provision was declared unconstitutional by the U.S. Supreme Court in
Afroyim v. Ruskxvi[16] as beyond the power given to the U.S. Congress to regulate foreign
relations. However, by filing a certificate of candidacy when he ran for his present post, private
respondent elected Philippine citizenship and in effect renounced his American citizenship.
Private respondents certificate of candidacy, filed on March 27, 1998, contained the following
statements made under oath:

6. I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR NATURALIZED)

NATURAL-BORN

....

10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN

LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR .

11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN

COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT
AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN
TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL
ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED
AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS
OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION
OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN
ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American citizenship,
effectively removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v.
COMELEC it was held:xvii[17]

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity
of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local
Government Code would disqualify him from running for any elective local position? We
answer this question in the negative, as there is cogent reason to hold that Frivaldo was really
STATELESS at the time he took said oath of allegiance and even before that, when he ran for
governor in 1988. In his Comment, Frivaldo wrote that he had long renounced and had long
abandoned his American citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in
the interimwhen he abandoned and renounced his US citizenship but before he was repatriated
to his Filipino citizenship.

On this point, we quote from the assailed Resolution dated December 19, 1995:

By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took
his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992,
and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine
Government.

These factual findings that Frivaldo has lost his foreign nationality long before the elections of
1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the
Commission are conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or abuse.

There is, therefore, no merit in petitioners contention that the oath of allegiance contained in
private respondents certificate of candidacy is insufficient to constitute renunciation of his
American citizenship. Equally without merit is petitioners contention that, to be effective, such
renunciation should have been made upon private respondent reaching the age of majority since
no law requires the election of Philippine citizenship to be made upon majority age.

Finally, much is made of the fact that private respondent admitted that he is registered as an
American citizen in the Bureau of Immigration and Deportation and that he holds an American
passport which he used in his last travel to the United States on April 22, 1997. There is no merit
in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship.
The acts attributed to him can be considered simply as the assertion of his American nationality
before the termination of his American citizenship. What this Court said in Aznar v.
COMELECxviii[18] applies mutatis mutandis to private respondent in the case at bar:

. . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere
fact that he has a Certificate stating he is an American does not mean that he is not still a
Filipino. . . . [T]he Certification that he is an American does not mean that he is not still a
Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express
renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of
said citizenship. When We consider that the renunciation needed to lose Philippine citizenship
must be express, it stands to reason that there can be no such loss of Philippine citizenship when
there is no renunciation, either express or implied.

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is

not a permanent resident or immigrant of another country; that he will defend and support the
Constitution of the Philippines and bear true faith and allegiance thereto and that he does so
without mental reservation, private respondent has, as far as the laws of this country are
concerned, effectively repudiated his American citizenship and anything which he may have said
before as a dual citizen.

On the other hand, private respondents oath of allegiance to the Philippines, when considered
with the fact that he has spent his youth and adulthood, received his education, practiced his
profession as an artist, and taken part in past elections in this country, leaves no doubt of his
election of Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago,xix[19]
we sustained the denial of entry into the country of petitioner on the ground that, after taking his
oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared
in commercial documents executed abroad that he was a Portuguese national. A similar sanction
can be taken against any one who, in electing Philippine citizenship, renounces his foreign
nationality, but subsequently does some act constituting renunciation of his Philippine
citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena,
Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Panganiban, and Purisima, JJ., on leave.

Pardo, J., no part.

Co v. HRET (Re: Citizenship issue only) [consti1]

Co v. Electoral Tribunal of the House of Representative

ANTONIO Y. CO, petitioner, vs. ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND
JOSE ONG, JR., respondents.
En Banc
Doctrine: citizenship
Date: July 30, 1991
Ponente: Justice Gutierrez Jr.

Facts:

 The petitioners come to this Court asking for the setting aside and reversal of a decision of the House of
Representatives Electoral Tribunal (HRET).
 The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and a resident of Laoang,
Northern Samar for voting purposes.
 On May 11, 1987, the congressional election for the second district of Northern Samar was held.
 Among the candidates who vied for the position of representative in the second legislative district of Northern
Samar are the petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose Ong, Jr.
 Respondent Ong was proclaimed the duly elected representative of the second district of Northern Samar.
 The petitioners filed election protests against the private respondent premised on the following grounds:
o 1)Jose Ong, Jr. is not a natural born citizen of the Philippines; and
o 2)Jose Ong, Jr. is not a resident of the second district of Northern Samar.
 The HRET in its decision dated November 6, 1989, found for the private respondent.
 A motion for reconsideration was filed by the petitioners on November 12, 1989. This was, however, denied
by the HRET in its resolution dated February 22, 1989.
 Hence, these petitions for certiorari.

Issue:

 WON Jose Ong, Jr. is a natural born citizen of the Philippines.

Held: Yes. Petitions are dismissed.

Ratio:

o The records show that in the year 1895, Ong Te (Jose Ong's grandfather), arrived in the Philippines
from China. Ong Te established his residence in the municipality of Laoang, Samar on land which
he bought from the fruits of hard work.
o As a resident of Laoang, Ong Te was able to obtain a certificate of residence from the then Spanish
colonial administration.
 o The father of the private respondent, Jose Ong Chuan was born in China in 1905. He was brought
by Ong Te to Samar in the year 1915. Jose Ong Chuan spent his childhood in the province of Samar.
o As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he absorbed Filipino
cultural values and practices. He was baptized into Christianity. As the years passed, Jose Ong
Chuan met a natural born-Filipino, Agripina Lao. The two fell in love and, thereafter, got married
in 1932 according to Catholic faith and practice.
o The couple bore eight children, one of whom is the Jose Ong who was born in 1948.
o Jose Ong Chuan never emigrated from this country. He decided to put up a hardware store and
shared and survived the vicissitudes of life in Samar.
o The business prospered. Expansion became inevitable. As a result, a branch was set-up in Binondo,
Manila. In the meantime, Jose Ong Chuan, unsure of his legal status and in an unequivocal
affirmation of where he cast his life and family, filed with the Court of First Instance of Samar an
application for naturalization on February 15, 1954.
o On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino citizen. On
May 15, 1957, the Court of First Instance of Samar issued an order declaring the decision of April
28, 1955 as final and executory and that Jose Ong Chuan may already take his Oath of Allegiance.
o Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly, a certificate
of naturalization was issued to him. During this time, Jose Ong (private respondent) was 9 years
old, finishing his elementary education in the province of Samar.

There is nothing in the records to differentiate him from other Filipinos insofar as the customs and practices of the
local populace were concerned.

o After completing his elementary education, the private respondent, in search for better education,
went to Manila in order to acquire his secondary and college education.
o Jose Ong graduated from college, and thereafter took and passed the CPA Board Examinations.
Since employment opportunities were better in Manila, the respondent looked for work here. He
found a job in the Central Bank of the Philippines as an examiner. Later, however, he worked in the
hardware business of his family in Manila.
o In 1971, his elder brother, Emil, was elected as a delegate to the 1971 Constitutional Convention.
His status as a natural born citizen was challenged. Parenthetically, the Convention which in drafting
the Constitution removed the unequal treatment given to derived citizenship on the basis of the
mother's citizenship formally and solemnly declared Emil Ong, respondent's full brother, as a natural
born Filipino. The Constitutional Convention had to be aware of the meaning of natural born
citizenship since it was precisely amending the article on this subject.
o The pertinent portions of the Constitution found in Article IV read:

 SECTION 1, the following are citizens of the Philippines:

1. Those who are citizens of the Philippines at the time of the adoption of the Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of
majority; and
4. Those who are naturalized in accordance with law.

 SECTION 2, Natural-born Citizens are those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their citizenship. Those who elect
Philippine citizenship in accordance with paragraph 3 hereof shall be deemed natural-born
citizens.
 o The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine
citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers,
elected citizenship before that date. The provision in question was enacted to correct the anomalous
situation where one born of a Filipino father and an alien mother was automatically granted the
status of a natural-born citizen while one born of a Filipino mother and an alien father would still
have to elect Philippine citizenship. If one so elected, he was not, under earlier laws, conferred the
status of a natural-born
o Election becomes material because Section 2 of Article IV of the Constitution accords natural born
status to children born of Filipino mothers before January 17, 1973, if they elect citizenship upon
reaching the age of majority.
 To expect the respondent to have formally or in writing elected citizenship when he came
of age is to ask for the unnatural and unnecessary. He was already a citizen. Not only was
his mother a natural born citizen but his father had been naturalized when the respondent
was only nine (9) years old.
 He could not have divined when he came of age that in 1973 and 1987 the Constitution
would be amended to require him to have filed a sworn statement in 1969 electing
citizenship inspite of his already having been a citizen since 1957.
 In 1969, election through a sworn statement would have been an unusual and unnecessary
procedure for one who had been a citizen since he was nine years old
o In Re: Florencio Mallare: the Court held that the exercise of the right of suffrage and the
participation in election exercises constitute a positive act of election of Philippine citizenship
o The private respondent did more than merely exercise his right of suffrage. He has established his
life here in the Philippines.

 Petitioners alleged that Jose Ong Chuan was not validly a naturalized citizen because of his premature taking
of the oath of citizenship.
o SC: The Court cannot go into the collateral procedure of stripping respondent’s father of his
citizenship after his death. An attack on a person’s citizenship may only be done through a direct
action for its nullity, therefore, to ask the Court to declare the grant of Philippine citizenship to
respondent’s father as null and void would run against the principle of due process because he has
already been laid to rest

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. 95122-23 May 31, 1991

BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND

DEPORTATION), BOARD OF SPECIAL INQUIRY, COMMISSIONER ANDREA D.
DOMINGO, ASSOCIATE COMMISSIONER JORGE V. SARMIENTO, ACTING
ASSOCIATE COMMISSIONER REGINO R. SANTIAGO, MEMBERS OF THE BOARD
OF SPECIAL INQUIRY, ESTANISLAO CANTA, LEO MAGAHOM and BENJAMIN
KALAW, petitioners,
vs.
HON. JOSELITO DELA ROSA, Presiding Judge, RTC Manila, Branch 29, WILLIAM T.
GATCHALIAN, respondents.

BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND

DEPORTATION), BOARD OF SPECIAL INQUIRY, COMMISSIONER ANDREA D.
DOMINGO, ASSOCIATE COMMISSIONER JORGE V. SARMIENTO, ACTING
ASSOCIATE COMMISSIONER REGINO R. SANTIAGO, MEMBERS OF THE BOARD
OF SPECIAL INQUIRY, ESTANISLAO CANTA, LEO MAGAHOM and BENJAMIN
KALAW, petitioners,
vs.
HON. TERESITA DIZON CAPULONG, Presiding Judge, RTC Branch 172, Valenzuela,
Metro Manila, DEE HUA T. GATCHALIAN, SHERWING T. GATCHALIAN,
KENNETH T. GATCHALIAN, REXLON T. GATCHALIAN, and WESLIE T.
GATCHALIAN, respondents.

G.R. Nos. 95612-13 May 31, 1991

WILLIAM T. GATCHALIAN, petitioner,

vs.
BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND
DEPORTATION), et al., respondents.

The Solicitor General for petitioners.

edesma, Saludo & Associates for respondent William Gatchalian.
Cervo and Tanay Law Office for respondent T.D. Capulong, D.H.T. Gatchalian, et al.

BIDIN, J.:

This is a petition for certiorari and prohibition filed by the Solicitor General seeking 1) to set
aside the Resolution/Temporary Restraining Order dated September 7, 1990, issued by
respondent Judge de la Rosa in Civil Case No. 90-54214 which denied petitioners' motion to
dismiss and restrained petitioners from commencing or continuing with any of the proceedings
which would lead to the deportation of respondent William Gatchalian, docketed as D.C. No. 90-
523, as well as the Order of respondent Judge Capulong dated September 6, 1990 in Civil Case
No. 3431-V-90 which likewise enjoined petitioners from proceeding with the deportation
charges against respondent Gatchalian, and 2) to prohibit respondent judges from further acting
in the aforesaid civil cases.

On October 23, 1990, respondent Gatchalian filed his Comment with Counter-Petition, docketed
as G.R. Nos. 96512-13, alleging lack of jurisdiction on the part of respondent Board of
Commissioners, et al., over his person with prayer that he be declared a Filipino citizen, or in the
alternative, to remand the case to the trial court for further proceedings.
On December 13, 1990, petitioners filed their comment to respondent Gatchalian's counter-
petition. The Court considers the comment filed by respondent Gatchalian as answer to the
petition and petitioners' comment as answer to the counter-petition and gives due course to the
petitions.

There is no dispute as to the following facts:

On July 12, 1960, Santiago Gatchalian, grandfather of William Gatchalian, was recognized by
the Bureau of Immigration as a native born Filipino citizen following the citizenship of his
natural mother, Marciana Gatchalian (Annex "1", counter-petition). Before the Citizenship
Evaluation Board, Santiago Gatchalian testified that he has five (5) children with his wife Chu
Gim Tee, namely: Jose Gatchalian, Gloria Gatchalian, Francisco Gatchalian, Elena Gatchalian
and Benjamin Gatchalian (Annex "2", counter-petition).

On June 27, 1961, William Gatchalian, then a twelve-year old minor, arrived in Manila from
Hongkong together with Gloria, Francisco, and Johnson, all surnamed Gatchalian. They had with
them Certificates of Registration and Identity issued by the Philippine Consulate in Hongkong
based on a cablegram bearing the signature of the then Secretary of Foreign Affairs, Felixberto
Serrano, and sought admission as Filipino citizens. Gloria and Francisco are the daughter and
son, respectively, of Santiago Gatchalian; while William and Johnson are the sons of Francisco.

After investigation, the Board of Special Inquiry No. 1 rendered a decision dated July 6, 1961,
admitting William Gatchalian and his companions as Filipino citizens (Annex "C", petition). As
a consequence thereof, William Gatchalian was issued Identification Certificate No. 16135 by
the immigration authorities on August 16, 1961 (Annex "D", petition).

On January 24, 1962, the then Secretary of Justice issued Memorandum No. 9 setting aside all
decisions purporting to have been rendered by the Board of Commissioners on appeal or on
review motu proprio of decisions of the Board of Special Inquiry. The same memorandum
directed the Board of Commissioners to review all cases where entry was allowed on the ground
that the entrant was a Philippine citizen. Among those cases was that of William and others.

On July 6, 1962, the new Board of Commissioners, after a review motu proprio of the
proceedings had in the Board of Special Inquiry, reversed the decision of the latter and ordered
the exclusion of, among others, respondent Gatchalian (Annex "E", petition). A warrant of
exclusion also dated July 6, 1962 was issued alleging that "the decision of the Board of
Commissioners dated July 6, 1962 . . . has now become final and executory (Annex "F",
petition).

The actual date of rendition of said decision by the Board of Commissioners (whether on July 6,
1962 or July 20, 1962) became the subject of controversy in the 1967 case of Arocha vs. Vivo (21
SCRA 532) wherein this Court sustained the validity of the decision of the new Board of
Commissioners having been promulgated on July 6, 1962, or within the reglementary period for
review.
Sometime in 1973, respondent Gatchalian, as well as the others covered by the July 6, 1962
warrant of exclusion, filed a motion for re-hearing with the Board of Special Inquiry where the
deportion case against them was assigned.

On March 14, 1973, the Board of Special Inquiry recommended to the then Acting
Commissioner Victor Nituda the reversal of the July 6, 1962 decision of the then Board of
Commissioners and the recall of the warrants of arrest issued therein (Annex "5", counter-
petition).

On March 15, 1973, Acting Commissioner Nituda issued an order reaffirming the July 6, 1961
decision of the Board of Special Inquiry thereby admitting respondent Gatchalian as a Filipino
citizen and recalled the warrant of arrest issued against him (Annex "6", counter-petition).

On June 7, 1990, the acting director of the National Bureau of Investigation wrote the Secretary
of Justice recommending that respondent Gatchalian along with the other applicants covered by
the warrant of exclusion dated July 6, 1962 be charged with violation of Sec. 37 (a), pars. 1 and
2, in relation to Secs. 45 (c), and (d) and (e) of Commonwealth Act No. 613, as amended, also
known as the Immigration Act of 1940 (Annex "G", petition).

On August 1, 1990, the Secretary of Justice indorsed the recommendation of the NBI to the
Commissioner of Immigration for investigation and immediate action (Annex "20", counter-
petition).

On August 15, 1990, petitioner Commissioner Domingo of the Commission of Immigration and
Deportation * issued a mission order commanding the arrest of respondent William Gatchalian
(Annex "18", counter-petition). The latter appeared before Commissioner Domingo on August
20, 1990 and was released on the same day upon posting P200,000.00 cash bond.

On August 29, 1990, William Gatchalian filed a petition for certiorari and prohibition with
injunction before the Regional Trial Court of Manila, Br. 29, presided by respondent Judge dela
Rosa, docketed as Civil Case No. 90-54214.

On September 4, 1990, petitioners filed a motion to dismiss Civil Case No. 90-54214 alleging
that respondent judge has no jurisdiction over the Board of Commissioners and/or the Board of
Special Inquiry. Nonetheless, respondent judge dela Rosa issued the assailed order dated
September 7, 1990, denying the motion to dismiss.

Meanwhile, on September 6, 1990, respondent Gatchalian's wife and minor children filed before
the Regional Trial Court of Valenzuela, Metro Manila, Br. 172, presided by respondent judge
Capulong Civil Case No. 3431-V-90 for injunction with writ of preliminary injunction. The
complaint alleged, among others, that petitioners acted without or in excess of jurisdiction in the
institution of deportation proceedings against William. On the same day, respondent Capulong
issued the questioned temporary restraining order restraining petitioners from continuing with
the deportation proceedings against William Gatchalian.
The petition is anchored on the following propositions: 1) respondent judges have no jurisdiction
over petitioners (Board of Commissioners, et al.,) and the subject matter of the case, appellate
jurisdiction being vested by BP 129 with the Court of Appeals; 2) assuming respondent judges
have jurisdiction, they acted with grave abuse of discretion in preempting petitioners in the
exercise of the authority and jurisdiction to hear and determine the deportation case against
respondent Gatchalian, and in the process determine also his citizenship; 3) respondent judge
dela Rosa gravely abused his discretion in ruling that the issues raised in the deportation
proceedings are beyond the competence and jurisdiction of petitioners, thereby disregarding the
cases of Arocha vs. Vivo and Vivo vs. Arca (supra), which put finality to the July 6, 1962
decision of the Board of Commissioners that respondent Gatchalian is a Chinese citizen; and 4)
respondent judge Capulong should have dismissed Civil Case No. 3431-V-90 for forum-
shopping.

In his counter-petition, William Gatchalian alleges among others that: 1) assuming that the
evidence on record is not sufficient to declare him a Filipino citizen, petitioners have no
jurisdiction to proceed with the deportation case until the courts shall have finally resolved the
question of his citizenship; 2) petitioners can no longer judiciously and fairly resolve the
question of respondent's citizenship in the deportation case because of their bias, pre-judgment
and prejudice against him; and 3) the ground for which he is sought to be deported has already
prescribed.

For purposes of uniformity, the parties herein will be referred to in the order the petitions were
filed.

Petitioners argue that under Sec. 9 (3) of BP 129, it is the Court of Appeals which has exclusive
appellate jurisdiction over all final judgments or orders of quasi-judicial agencies, boards or
commissions, such as the Board of Commissioners and the Board of Special Inquiry.

Respondent, on the other hand, contends that petitioners are not quasi-judicial agencies and are
not in equal rank with Regional Trial Courts.

Under Sec. 21 (1) of Batas Pambansa Blg. 129, the Regional Trial Courts have concurrent
jurisdiction with this Court and the Court of Appeals to issue "writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of
their respective regions, . . ." Thus, the RTCs are vested with the power to determine whether or
not there has been a grave abuse of discretion on the part of any branch or instrumentality of the
government.

It is true that under Sec. 9 (3) of Batas Pambansa Blg. 129, the Court of Appeals is vested with
—

(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, order,
or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, board
or commission, except those falling within the appellate jurisdiction of the Supreme
Court in accordance with the Constitution, the provisions of this Act, and of sub-
 paragraph (1) of the third paragraph of and sub-paragraph (4) of the fourth paragraph of
Section 17 of the Judiciary Act of 1948.

It does not provide, however, that said exclusive appellate jurisdiction of the Court of Appeals
extends to all quasi-judicial agencies. The quasi-judicial bodies whose decisions are exclusively
appealable to the Court of Appeals are those which under the law, Republic Act No. 5434, or
their enabling acts, are specifically appealable to the Court of Appeals (Presidential Anti-Dollar
Salting Task Force vs. Court of Appeals, 171 SCRA 348 [1989]; Lupangco vs. Court of Appeals,
160 SCRA 848 [1988]). Thus, under Republic Act No. 5434, it is specifically provided that the
decisions of the Land Registration Commission (LRC), the Social Security Commission (SSC),
Civil Aeronautics Board (CAB), the Patent Office and the Agricultural Invention Board are
appealable to the Court of Appeals.

In the Presidential Anti-Dollar Salting Task Force (supra), this Court clarified the matter when
We ruled:

Under our Resolution dated January 11, 1983:

. . . The appeals to the Intermediate Appellate Court (now Court of Appeals) from
quasi-judicial bodies shall continue to be governed by the provisions of Republic
Act No. 5434 insofar as the same is not inconsistent with the provisions of B.P.
Blg. 129.

The pertinent provisions of Republic Act No. 5434 are as follows:

Sec. 1. Appeals from specified agencies.— Any provision of existing law or Rules
of Court to the contrary notwithstanding, parties aggrieved by a final ruling,
award, order, or decision, or judgment of the Court of Agrarian Relations; the
Secretary of Labor under Section 7 of Republic Act Numbered Six hundred and
two, also known as the "Minimum Wage Law"; the Department of Labor under
Section 23 of Republic Act Numbered Eight hundred seventy-five, also known as
the "Industrial Peace Act"; the Land Registration Commission; the Social Security
Commission; the Civil Aeronautics Board; the Patent Office and the Agricultural
Inventions Board, may appeal therefrom to the Court of Appeals, within the
period and in the manner herein provided, whether the appeal involves questions
of fact, mixed questions of fact and law, or questions of law, or all three kinds of
questions. From final judgments or decisions of the Court of Appeals, the
aggrieved party may appeal by certiorari to the Supreme Court as provided under
Rule 45 of the Rules of Court.

Because of subsequent amendments, including the abolition of various special courts,

jurisdiction over quasi-judicial bodies has to be, consequently, determined by the
corresponding amendatory statutes. Under the Labor Code, decisions and awards of the
National Labor Relations Commission are final and executory, but, nevertheless,
reviewable by this Court through a petition for certiorari and not by way of appeal.
 Under the Property Registration Decree, decision of the Commission of Land
Registration, en consulta, are appealable to the Court of Appeals.

The decisions of the Securities and Exchange Commission are likewise appealable to the
Appellate Court, and so are decisions of the Social Security Commission.

As a rule, where legislation provides for an appeal from decisions of certain

administrative bodies to the Court of Appeals, it means that such bodies are co-equal
with the Regional Trial Courts, in terms of rank and stature, and logically, beyond the
control of the latter. (Emphasis supplied)

There are quasi-judicial agencies, as the National Labor Relations Commissions, whose
decisions are directly appealable to this Court. It is only when a specific law, as Republic Act
No. 5434, provides appeal from certain bodies or commissions to the Court of Appeals as the
Land Registration Commission (LRC), Securities and Exchange Commission (SEC) and others,
that the said commissions or boards may be considered co-equal with the RTCs in terms of rank,
stature and are logically beyond the control of the latter.

However, the Bureau of Immigration (or CID) is not among those quasi-judicial agencies
specified by law whose decisions, orders, and resolutions are directly appealable to the Court of
Appeals. In fact, its decisions are subject to judicial review in accordance with Sec. 25, Chapter
4, Book VII of the 1987 Administrative Code, which provides as follows:

Sec. 25. Judicial Review.—(1) Agency decisions shall be subject to judicial review in
accordance with this chapter and applicable laws.

xxx xxx xxx

(6) The review proceeding shall be filed in the court specified in the statute or, in the
absence thereof, in any court of competent jurisdiction in accordance with the provisions
on venue of the Rules of Court.

Said provision of the Administrative Code, which is subsequent to B.P. Blg. 129 and which thus
modifies the latter, provides that the decision of an agency like the Bureau of Immigration should
be subject to review by the court specified by the statute or in the absence thereof, it is subject to
review by any court of competent jurisdiction in accordance with the provisions on venue of the
Rules of Court.

B.P. Blg. 129 did not intend to raise all quasi-judicial bodies to the same level or rank of the
RTC except those specifically provided for under the law as aforestated. As the Bureau of
Immigration is not of equal rank as the RTC, its decisions may be appealable to, and may be
reviewed through a special civil action for certiorari by, the RTC (Sec. 21, (1) BP 129).

True, it is beyond cavil that the Bureau of Immigration has the exclusive authority and
jurisdiction to try and hear cases against an alleged alien, and in the process, determine also their
citizenship (Lao Gi vs. Court of Appeals, 180 SCRA 756 [1989]). And a mere claim of
citizenship cannot operate to divest the Board of Commissioners of its jurisdiction in deportation
proceedings (Miranda vs. Deportation Board, 94 Phil. 531 [1954]).

However, the rule enunciated in the above-cases admits of an exception, at least insofar as
deportation proceedings are concerned. Thus, what if the claim to citizenship of the alleged
deportee is satisfactory? Should the deportation proceedings be allowed to continue or should the
question of citizenship be ventilated in a judicial proceeding? In Chua Hiong vs. Deportation
Board (96 Phil. 665 [1955]), this Court answered the question in the affirmative, and We quote:

When the evidence submitted by a respondent is conclusive of his citizenship, the right to
immediate review should also be recognized and the courts should promptly enjoin the
deportation proceedings. A citizen is entitled to live in peace, without molestation from
any official or authority, and if he is disturbed by a deportation proceeding, he has the
unquestionable right to resort to the courts for his protection, either by a writ of habeas
corpus or of prohibition, on the legal ground that the Board lacks jurisdiction. If he is a
citizen and evidence thereof is satisfactory, there is no sense nor justice in allowing the
deportation proceedings to continue, granting him the remedy only after the Board has
finished its investigation of his undesirability.

. . . And if the right (to peace) is precious and valuable at all, it must also be protected on
time, to prevent undue harassment at the hands of ill-meaning or misinformed
administrative officials. Of what use is this much boasted right to peace and liberty if it
can be availed of only after the Deportation Board has unjustly trampled upon it,
besmirching the citizen's name before the bar of public opinion? (Emphasis supplied)

The doctrine of primary jurisdiction of petitioners Board of Commissioners over deportation

proceedings is, therefore, not without exception (Calacday vs. Vivo, 33 SCRA 413 [1970]; Vivo
vs. Montesa, 24 SCRA 155 [1967]). Judicial intervention, however, should be granted only in
cases where the "claim of citizenship is so substantial that there are reasonable grounds to
believe that the claim is correct. In other words, the remedy should be allowed only on sound
discretion of a competent court in a proper proceeding (Chua Hiong vs. Deportation Board,
supra; Co. vs. Deportation Board, 78 SCRA 107 [1977]). It appearing from the records that
respondent's claim of citizenship is substantial, as We shall show later, judicial intervention
should be allowed.

In the case at bar, the competent court which could properly take cognizance of the proceedings
instituted by respondent Gatchalian would nonetheless be the Regional Trial Court and not the
Court of Appeals in view of Sec. 21 (1), BP 129, which confers upon the former jurisdiction over
actions for prohibition concurrently with the Court of Appeals and the Supreme Court and in line
with the pronouncements of this Court in Chua Hiong and Co cases.

Ordinarily, the case would then be remanded to the Regional Trial Court. But not in the case at
bar.1âwphi1 Considering the voluminous pleadings submitted by the parties and the evidence
presented, We deem it proper to decide the controversy right at this instance. And this course of
action is not without precedent for "it is a cherished rule of procedure for this Court to always
strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the
seeds of future litigation. No useful purpose will be served if this case is remanded to the trial
court only to have its decision raised again to the Court of Appeals and from there to this Court"
(Marquez vs. Marquez, 73 Phil. 74; Keramic Industries, Inc. vs. Guerrero, 61 SCRA 265 [1974])
Alger Electric, Inc. vs. Court of Appeals (135 SCRA 37 [1985]), citing Gayos vs. Gayos (67
SCRA 146 [1975]).

In Lianga Bay Logging Co., Inc. vs. Court of Appeals (157 SCRA 357 [1988]), We also stated:

Remand of the case to the lower court for further reception of evidence is not necessary
where the court is in a position to resolve the dispute based on the records before it. On
many occasions, the Court, in the public interest and the expeditious administration of
justice, has resolved actions on the merits instead of remanding them to the trial court for
further proceedings, such as where the ends of justice would not be subserved by the
remand of the case or when public interest demands an early disposition of the case or
where the trial court had already received all the evidence of the parties (Quisumbing vs.
CA, 112 SCRA 703; Francisco, et al., vs. The City of Davao, et al., supra; Republic vs.
Security Credit & Acceptance Corp., et al., 19 SCRA 58; Samal vs. CA, supra; Republic
vs. Central Surety & Insurance Co., 25 SCRA 641).

Likewise in Tejones vs. Gironella (159 SCRA 100 [1988]), We said:

Sound practice seeks to accommodate the theory which avoids waste of time, effort and
expense, both to the parties and the government, not to speak of delay in the disposal of
the case (cf. Fernandez vs. Garcia, 92 Phil. 592, 297). A marked characterstic of our
judicial set-up is that where the dictates of justice so demand . . . the Supreme Court
should act, and act with finality (Li Siu Liat vs. Republic, 21 SCRA 1039, 1046, citing
Samal vs. CA, 99 Phil. 230 and US vs. Gimenez, 34 Phil. 74.) (Beautifont, Inc. vs. Court
of appeals, et al., Jan. 29, 1988; See also Labo vs. Commission on Elections, 176 SCRA
1 [1989]).

Respondent Gatchalian has adduced evidence not only before the Regional Trial Court but also
before Us in the form of public documents attached to his pleadings. On the other hand, Special
Prosecutor Renato Mabolo in his Manifestation (dated September 6, 1990; Rollo, p. 298,
counter-petition) before the Bureau of Immigration already stated that there is no longer a need
to adduce evidence in support of the deportation charges against respondent. In addition,
petitioners invoke that this Court's decision in Arocha vs. Vivo and Vivo vs. Arca (supra), has
already settled respondent's alienage. Hence, the need for a judicial determination of respondent's
citizenship specially so where the latter is not seeking admission, but is already in the Philippines
(for the past thirty [30] years) and is being expelled (Chua Hiong vs. Deportation Board, supra).

According to petitioners, respondent's alienage has been conclusively settled by this Court in the
Arocha and Vivo cases, We disagree. It must be noted that in said cases, the sole issue resolved
therein was the actual date of rendition of the July 6, 1962 decision of the then board of
Commissioners, i.e., whether the decision was rendered on July 6, 1962 or on July 20, 1962 it
appearing that the figure (date) "20" was erased and over it was superimposed the figure "6"
thereby making the decision fall within the one-year reglementary period from July 6, 1961
within which the decision may be reviewed. This Court did not squarely pass upon any question
of citizenship, much less that of respondent's who was not a party in the aforesaid cases. The said
cases originated from a petition for a writ of habeas corpus filed on July 21, 1965 by Macario
Arocha in behalf of Pedro Gatchalian. Well settled is the rule that a person not party to a case
cannot be bound by a decision rendered therein.

Neither can it be argued that the Board of Commissioners' decision (dated July 6, 1962) finding
respondent's claim to Philippine citizenship not satisfactorily proved, constitute res judicata. For
one thing, said decision did not make any categorical statement that respondent Gatchalian is a
Chinese. Secondly, the doctrine of res judicata does not apply to questions of citizenship (Labo
vs. Commission on Elections (supra); citing Soria vs. Commissioner of Immigration, 37 SCRA
213; Lee vs. Commissioner of Immigration, 42 SCRA 561 [1971]; Sia Reyes vs. Deportation
Board, 122 SCRA 478 [1983]).

In Moy Ya Lim vs. Commissioner of Immigration (41 SCRA 292 [1971]) and in Lee vs.
Commissioner of Immigration (supra), this Court declared that:

(e)verytime the citizenship of a person is material or indispensable in a judicial or

administrative case, whatever the corresponding court or administrative authority decides
therein as to such citizenship is generally not considered as res adjudicata, hence it has to
be threshed out again and again as the occasion may demand.

An exception to the above rule was laid by this Court in Burca vs. Republic (51 SCRA 248
[1973]), viz:

We declare it to be a sound rule that where the citizenship of a party in a case is definitely
resolved by a court or by an administrative agency, as a material issue in the controversy,
after a full-blown hearing with the active participation of the Solicitor General or his
authorized representative, and this finding or the citizenship of the party is affirmed by
this Court, the decision on the matter shall constitute conclusive proof of such party's
citizenship in any other case or proceeding. But it is made clear that in no instance will a
decision on the question of citizenship in such cases be considered conclusive or binding
in any other case or proceeding, unless obtained in accordance with the procedure herein
stated.

Thus, in order that the doctrine of res judicata may be applied in cases of citizenship, the
following must be present: 1) a person's citizenship must be raised as a material issue in a
controversy where said person is a party; 2) the Solicitor General or his authorized representative
took active part in the resolution thereof, and 3) the finding or citizenship is affirmed by this
Court.

Gauged by the foregoing, We find the pre-conditions set forth in Burca inexistent in the Arocha
and Vivo cases relied upon by petitioners. Indeed, respondent William Gatchalian was not even a
party in said cases.
Coming now to the contention of petitioners that the arrest of respondent follows as a matter of
consequence based on the warrant of exclusion issued on July 6, 1962, coupled with the Arocha
and Vivo cases (Rollo, pp. 33), the Court finds the same devoid of merit.

Sec. 37 (a) of Commonwealth Act No. 613, as amended, otherwise known as the Immigration
Act of 1940, reads:

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner
of Immigration or of any other officer designated by him for the purpose and deported
upon the warrant of the Commissioner of Immigration after a determination by the Board
of Commissioner of the existence of the ground for deportation as charged against the
alien. (Emphasis supplied)

From a perusal of the above provision, it is clear that in matters of implementing the Immigration
Act insofar as deportation of aliens are concerned, the Commissioner of Immigration may issue
warrants of arrest only after a determination by the Board of Commissioners of the existence of
the ground for deportation as charged against the alien. In other words, a warrant of arrest issued
by the Commissioner of Immigration, to be valid, must be for the sole purpose of executing a
final order of deportation. A warrant of arrest issued by the Commissioner of Immigration for
purposes of investigation only, as in the case at bar, is null and void for being unconstitutional
(Ang Ngo Chiong vs. Galang, 67 SCRA 338 [1975] citing Po Siok Pin vs. Vivo, 62 SCRA 363
[1975]; Vivo vs. Montesa, 24 SCRA 155; Morano vs. Vivo, 20 SCRA 562; Qua Chee Gan vs.
Deportation Board, 9 SCRA 27 [1963]; Ng Hua To vs. Galang, 10 SCRA 411; see also Santos
vs. Commissioner of Immigration, 74 SCRA 96 [1976]).

As We held in Qua Chee Gan vs. Deportation Board (supra), "(t)he constitution does not
distinguish warrants between a criminal case and administrative proceedings. And if one
suspected of having committed a crime is entitled to a determination of the probable cause
against him, by a judge, why should one suspected of a violation of an administrative nature
deserve less guarantee?" It is not indispensable that the alleged alien be arrested for purposes of
investigation. If the purpose of the issuance of the warrant of arrest is to determine the existence
of probable cause, surely, it cannot pass the test of constitutionality for only judges can issue the
same (Sec. 2, Art. III, Constitution).

A reading of the mission order/warrant of arrest (dated August 15, 1990; Rollo, p. 183, counter-
petition) issued by the Commissioner of Immigration, clearly indicates that the same was issued
only for purposes of investigation of the suspects, William Gatchalian included. Paragraphs 1
and 3 of the mission order directs the Intelligence Agents/Officers to:

xxx xxx xxx

1. Make a warrantless arrest under the Rules of Criminal Procedure, Rule 113, Sec. 5, for
violation of the Immigration Act, Sec. 37, para. a; Secs. 45 and 46 Administrative Code;

xxx xxx xxx

 3. Deliver the suspect to the Intelligence Division and immediately conduct custodial
interrogation, after warning the suspect that he has a right to remain silent and a right to
counsel; . . .

Hence, petitioners' argument that the arrest of respondent was based, ostensibly, on the July 6,
1962 warrant of exclusion has obviously no leg to stand on. The mission order/warrant of arrest
made no mention that the same was issued pursuant to a final order of deportation or warrant of
exclusion.

But there is one more thing that militates against petitioners' cause. As records indicate, which
petitioners conveniently omitted to state either in their petition or comment to the counter-
petition of respondent, respondent Gatchalian, along with others previously covered by the 1962
warrant of exclusion, filed a motion for re-hearing before the Board of Special Inquiry (BSI)
sometime in 1973.

On March 14, 1973, the Board of Special Inquiry, after giving due course to the motion for re-
hearing, submitted a memorandum to the then Acting Commissioner Victor Nituda (Annex "5",
counter-petition) recommending 1 the reconsideration of the July 6, 1962 decision of the then
Board of Commissioners which reversed the July 6, 1961 decision of the then Board of Special
Inquiry No. 1 and 2 the lifting of the warrants of arrest issued against applicants. The
memorandum inferred that the "very basis of the Board of Commissioners in reversing the
decision of the Board of Special Inquiry was due to a forged cablegram by the then Secretary of
Foreign Affairs, . . ., which was dispatched to the Philippine Consulate in Hong Kong
authorizing the registration of applicants as P.I. citizens." The Board of Special Inquiry
concluded that "(i)f at all, the cablegram only led to the issuance of their Certificate(s) of Identity
which took the place of a passport for their authorized travel to the Philippines. It being so, even
if the applicants could have entered illegally, the mere fact that they are citizens of the
Philippines entitles them to remain in the country."

On March 15, 1973, then Acting Commissioner Nituda issued an Order (Annex "6", counter-
petition) which affirmed the Board of Special Inquiry No. 1 decision dated July 6, 1961
admitting respondent Gatchalian and others as Filipino citizens; recalled the July 6, 1962 warrant
of arrest and revalidated their Identification Certificates.

The above order admitting respondent as a Filipino citizen is the last official act of the
government on the basis of which respondent William Gatchalian continually exercised the
rights of a Filipino citizen to the present. Consequently, the presumption of citizenship lies in
favor of respondent William Gatchalian.

There should be no question that Santiago Gatchalian, grandfather of William Gatchalian, is a

Filipino citizen. As a matter of fact, in the very order of the BOC of July 6, 1962, which reversed
the July 6, 1961 BSI order, it is an accepted fact that Santiago Gatchalian is a Filipino. The
opening paragraph of said order states:

The claim to Filipino citizenship of abovenamed applicants is based on the citizenship of

one Santiago Gatchalian whose Philippine citizenship was recognized by the Bureau of
 Immigration in an Order dated July 12, 1960. (Annex "37", Comment with Counter-
Petition).

Nonetheless, in said order it was found that the applicants therein have not satisfactorily proven
that they are the children and/or grandchildren of Santiago Gatchalian. The status of Santiago
Gatchalian as a Filipino was reiterated in Arocha and Arca (supra) where advertence is made to
the "applicants being the descendants of one Santiago Gatchalian, a Filipino." (at p. 539).

In the sworn statement of Santiago Gatchalian before the Philippine Consul in Hongkong in 1961
(Annex "1" to the Comment of petitioners to Counter-Petition), he reiterated his status as a
Philippine citizen being the illegitimate child of Pablo Pacheco and Marciana Gatchalian, the
latter being a Filipino; that he was born in Manila on July 25, 1905; and that he was issued
Philippine Passport No. 28160 (PA-No. A91196) on November 18, 1960 by the Department of
Foreign Affairs in Manila. In his affidavit of January 23, 1961 (Annex "5", counter-petition),
Santiago reiterated his claim of Philippine citizenship as a consequence of his petition for
cancellation of his alien registry which was granted on February 18, 1960 in C.E.B. No. 3660-L;
and that on July 20, 1960, he was recognized by the Bureau of Immigration as a Filipino and was
issued Certificate No. 1-2123.

The dissenting opinions of my esteemed brethrens, Messrs. Justices F.P. Feliciano and H.G.
Davide, Jr., proposing to re-open the question of citizenship of Santiago Gatchalian at this stage
of the case, where it is not even put in issue, is quite much to late. As stated above, the records of
the Bureau of Immigration show that as of July 20, 1960, Santiago Gatchalian had been declared
to be a Filipino citizen. It is a final decision that forecloses a re-opening of the same 30 years
later. Petitioners do not even question Santiago Gatchalian's Philippine citizenship. It is the
citizenship of respondent William Gatchalian that is in issue and addressed for determination of
the Court in this case.

Furthermore, petitioners' position is not enhanced by the fact that respondent's arrest came
twenty-eight (28) years after the alleged cause of deportation arose. Section 37 (b) of the
Immigration Act states that deportation "shall not be effected . . . unless the arrest in the
deportation proceedings is made within five (5) years after the cause of deportation arises." In
Lam Shee vs. Bengzon (93 Phil. 1065 [1953]), We laid down the consequences of such inaction,
thus:

There is however an important circumstance which places this case beyond the reach of
the resultant consequence of the fraudulent act committed by the mother of the minor
when she admitted that she gained entrance into the Philippines by making use of the
name of a Chinese resident merchant other than that of her lawful husband, and that is,
that the mother can no longer be the subject of deportation proceedings for the simple
reason that more than 5 years had elapsed from the date of her admission. Note that the
above irregularity was divulged by the mother herself, who in a gesture of sincerity, made
an spontaneous admission before the immigration officials in the investigation conducted
in connection with the landing of the minor on September 24, 1947, and not through any
effort on the part of the immigration authorities. And considering this frank admission,
plus the fact that the mother was found to be married to another Chinese resident
 merchant, now deceased, who owned a restaurant in the Philippines valued at P15,000
and which gives a net profit of P500 a month, the immigration officials then must have
considered the irregularity not serious enough when, inspire of that finding, they decided
to land said minor "as a properly documented preference quota immigrant" (Exhibit D).
We cannot therefore but wonder why two years later the immigration officials would
reverse their attitude and would take steps to institute deportation proceedings against the
minor.

Under the circumstances obtaining in this case, we believe that much as the attitude of
the mother would be condemned for having made use of an improper means to gain
entrance into the Philippines and acquire permanent residence there, it is now too late,
not to say unchristian, to deport the minor after having allowed the mother to remain
even illegally to the extent of validating her residence by inaction, thus allowing the
period of prescription to set in and to elapse in her favor. To permit his deportation at
this late hour would be to condemn him to live separately from his mother through no
fault of his thereby leaving him to a life of insecurity resulting from lack of support and
protection of his family. This inaction or oversight on the part of immigration officials
has created an anomalous situation which, for reasons of equity, should be resolved in
favor of the minor herein involved. (Emphasis supplied)

In the case at bar, petitioners' alleged cause of action and deportation against herein respondent
arose in 1962. However, the warrant of arrest of respondent was issued by Commissioner
Domingo only on August 15, 1990 — 28 long years after. It is clear that petitioners' cause of
action has already prescribed and by their inaction could not now be validly enforced by
petitioners against respondent William Gatchalian. Furthermore, the warrant of exclusion dated
July 6, 1962 was already recalled and the Identification certificate of respondent, among others,
was revalidated on March 15, 1973 by the then Acting Commissioner Nituda.

It is also proposed in the dissenting opinions of Messrs. Justices Feliciano and Davide, Jr., that
the BOC decision dated July 6, 1962 and the warrant of exclusion which was found to be valid in
Arocha should be applicable to respondent William Gatchalian even if the latter was not a party
to said case. They also opined that under Sec. 37 (b) of the Immigration Act, the five (5) years
limitation is applicable only where the deportation is sought to be effected under clauses of Sec.
37 (b) other than clauses 2, 7, 8, 11 and 12 and that no period of limitation is applicable in
deportations under clauses 2, 7, 8, 11 and 12.

The Court disagrees. Under Sec. 39 of the Immigration Act, it is reiterated that such deportation
proceedings should be instituted within five (5) years. Section 45 of the same Act provides penal
sanctions for violations of the offenses therein enumerated with a fine of "not more than
P1,000.00 and imprisonment for not more than two (2) years and deportation if he is an alien."
Thus:

Penal Provisions

Sec. 45. Any individual who—

 (a) When applying for an immigration document personates another individual, or falsely
appears in the name of deceased individual, or evades the immigration laws by appearing
under an assumed name; fictitious name; or

(b) Issues or otherwise disposes of an immigration document, to any person not

authorized by law to receive such document; or

(c) Obtains, accepts or uses any immigration document, knowing it to be false; or

(d) Being an alien, enters the Philippines without inspection and admission by the
immigration officials, or obtains entry into the Philippines by wilful, false, or misleading
representation or wilful concealment of a material fact; or

(e) Being an alien shall for any fraudulent purpose represent himself to be a Philippine
citizen in order to evade any requirement of the immigration laws; or

(f) In any immigration matter shall knowingly make under oath any false statement or
representations; or

(g) Being an alien, shall depart from the Philippines without first securing an immigration
clearance certificates required by section twenty-two of this Act; or

(h) Attempts or conspires with another to commit any of the foregoing acts, shall be
guilty of an offense, and upon conviction thereof, shall be fined not more than one
thousand pesos, and imprisoned for not more than two years, and deported if he is an
alien. (Emphasis supplied)

Such offenses punishable by correctional penalty prescribe in 10 years (Art. 90, Revised Penal
Code); correctional penalties also prescribe in 10 years (Art. 92, Revised Penal Code).

It must be noted, however, that under Sec. 1, Act No. 3326 [1926], as amended, (Prescription for
Violations Penalized by Special Acts and Municipal Ordinances) "violations penalized by special
acts shall, unless otherwise provided in such acts, prescribe in accordance with the following
rules: . . .c) after eight years for those punished by imprisonment for two years or more, but less
than six years; . . ."

Consequently, no prosecution and consequent deportation for violation of the offenses

enumerated in the Immigration Act can be initiated beyond the eight-year prescriptive period, the
Immigration Act being a special legislation.

The Court, therefore, holds that the period of effecting deportation of an alien after entry or a
warrant of exclusion based on a final order of the BSI or BOC are not imprescriptible. The law
itself provides for a period of prescription. Prescription of the crime is forfeiture or loss of the
rights of the State to prosecute the offender after the lapse of a certain time, while prescription of
the penalty is the loss or forfeiture by the government of the right to execute the final sentence
after the lapse of a certain time (Padilla, Criminal Law, Vol. 1, 1974, at p. 855).
"Although a deportation proceeding does not partake of the nature of a criminal action, however,
considering that it is a harsh and extraordinary administrative proceeding affecting the freedom
and liberty of a person, the constitutional right of such person to due process should not be
denied. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal
procedure are applicable to deportation proceedings." (Lao Gi vs. Court of Appeals, supra).
Under Sec. 6, Rule 39 of the Rules of Court, a final judgment may not be executed after the lapse
of five (5) years from the date of its entry or from the date it becomes final and executory.
Thereafter, it may be enforced only by a separate action subject to the statute of limitations.
Under Art. 1144 (3) of the Civil Code, an action based on judgment must be brought within 10
years from the time the right of action accrues.

In relation to Sec. 37 (b) of the Immigration Act, the rule, therefore, is:

1. Deportation or exclusion proceedings should be initiated within five (5) years after the cause
of deportation or exclusion arises when effected under any other clauses other than clauses 2, 7,
8, 11 and 12 and of paragraph (a) of Sec. 37 of the Immigration Act; and

2. When deportation or exclusion is effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of

Sec. 37, the prescriptive period of the deportation or exclusion proceedings is eight (8) years.

In the case at bar, it took petitioners 28 years since the BOC decision was rendered on July 6,
1962 before they commenced deportation or exclusion proceedings against respondent William
Gatchalian in 1990. Undoubtedly, petitioners' cause of action has already prescribed. Neither
may an action to revive and/or enforce the decision dated July 6, 1962 be instituted after ten (10)
years (Art. 1144 [3], Civil Code).

Since his admission as a Filipino citizen in 1961, respondent William Gatchalian has
continuously resided in the Philippines. He married Ting Dee Hua on July 1, 1973 (Annex "8",
counter-petition) with whom he has four (4) minor children. The marriage contract shows that
said respondent is a Filipino (Annex "8"). He holds passports and earlier passports as a Filipino
(Annexes "9", "10" & "11", counter-petition). He is a registered voter of Valenzuela, Metro
Manila where he has long resided and exercised his right of suffrage (Annex 12, counter-
petition). He engaged in business in the Philippines since 1973 and is the director/officer of the
International Polymer Corp. and Ropeman International Corp. as a Filipino (Annexes, "13" &
"14", counter-petition). He is a taxpayer. Respondent claims that the companies he runs and in
which he has a controlling investment provides livelihood to 4,000 employees and approximately
25,000 dependents. He continuously enjoyed the status of Filipino citizenship and discharged his
responsibility as such until petitioners initiated the deportation proceedings against him.

"The power to deport an alien is an act of the State. It is an act by or under the authority of the
sovereign power. It is a police measure against undesirable aliens whose presence in the country
is found to be injurious to the public good and domestic tranquility of the people" (Lao Gi vs.
Court of Appeals, supra). How could one who has helped the economy of the country by
providing employment to some 4,000 people be considered undesirable and be summarily
deported when the government, in its concerted drive to attract foreign investors, grants Special
Resident Visa to any alien who invest at least US$50,000.00 in the country? Even assuming
arguendo that respondent is an alien, his deportation under the circumstances is unjust and unfair,
if not downright illegal. The action taken by petitioners in the case at bar is diametrically
opposed to settled government policy.

Petitioners, on the other hand, claim that respondent is an alien. In support of their position,
petitioners point out that Santiago Gatchalian's marriage with Chu Gim Tee in China as well as
the marriage of Francisco (father of William) Gatchalian to Ong Chiu Kiok, likewise in China,
were not supported by any evidence other than their own self-serving testimony nor was there
any showing what the laws of China were. It is the postulate advanced by petitioners that for the
said marriages to be valid in this country, it should have been shown that they were valid by the
laws of China wherein the same were contracted. There being none, petitioners conclude that the
aforesaid marriages cannot be considered valid. Hence, Santiago's children, including Francisco,
followed the citizenship of their mother, having been born outside of a valid marriage. Similarly,
the validity of the Francisco's marriage not having been demonstrated, William and Johnson
followed the citizenship of their mother, a Chinese national.

After a careful consideration of petitioner's argument, We find that it cannot be sustained.

In Miciano vs. Brimo (50 Phil. 867 [1924]; Lim and Lim vs. Collector of Customs, 36 Phil. 472;
Yam Ka Lim vs. Collector of Customs, 30 Phil. 46 [1915]), this Court held that in the absence of
evidence to the contrary, foreign laws on a particular subject are presumed to be the same as
those of the Philippines. In the case at bar, there being no proof of Chinese law relating to
marriage, there arises the presumption that it is the same as that of Philippine law.

The lack of proof of Chinese law on the matter cannot be blamed on Santiago Gatchalian much
more on respondent William Gatchalian who was then a twelve-year old minor. The fact is, as
records indicate, Santiago was not pressed by the Citizenship Investigation Board to prove the
laws of China relating to marriage, having been content with the testimony of Santiago that the
Marriage Certificate was lost or destroyed during the Japanese occupation of China. Neither was
Francisco Gatchalian's testimony subjected to the same scrutiny by the Board of Special Inquiry.
Nevertheless, the testimonies of Santiago Gatchalian and Francisco Gatchalian before the
Philippine consular and immigration authorities regarding their marriages, birth and relationship
to each other are not self-serving but are admissible in evidence as statements or declarations
regarding family reputation or tradition in matters of pedigree (Sec. 34, Rule 130). Furtheremore,
this salutary rule of evidence finds support in substantive law. Thus, Art. 267 of the Civil Code
provides:

Art. 267. In the absence of a record of birth, authentic document, final judgment or
possession of status, legitimate filiation may be proved by any other means allowed by
the Rules of Court and special laws. (See also Art. 172 of the Family Code)

Consequently, the testimonies/affidavits of Santiago Gatchalian and Francisco Gatchalian

aforementioned are not self-serving but are competent proof of filiation (Art. 172 [2], Family
Code).
Philippine law, following the lex loci celebrationis, adheres to the rule that a marriage formally
valid where celebrated is valid everywhere. Referring to marriages contracted abroad, Art. 71 of
the Civil Code (now Art. 26 of the Family Code) provides that "(a)ll marriages performed
outside of the Philippines in accordance with the laws in force in the country where they were
performed, and valid there as such, shall also be valid in this country . . ." And any doubt as to
the validity of the matrimonial unity and the extent as to how far the validity of such marriage
may be extended to the consequences of the coverture is answered by Art. 220 of the Civil Code
in this manner: "In case of doubt, all presumptions favor the solidarity of the family. Thus, every
intendment of law or facts leans toward the validity of marriage, the indissolubility of the
marriage bonds, the legitimacy of children, the community of property during marriage, the
authority of parents over their children, and the validity of defense for any member of the family
in case of unlawful aggression." (Emphasis supplied). Bearing in mind the "processual
presumption" enunciated in Miciano and other cases, he who asserts that the marriage is not
valid under our law bears the burden of proof to present the foreign law.

Having declared the assailed marriages as valid, respondent William Gatchalian follows the
citizenship of his father Francisco, a Filipino, as a legitimate child of the latter. Francisco, in turn
is likewise a Filipino being the legitimate child of Santiago Gatchalian who (the latter) is
admittedly a Filipino citizen whose Philippine citizenship was recognized by the Bureau of
Immigration in an order dated July 12, 1960.

Finally, respondent William Gatchalian belongs to the class of Filipino citizens contemplated
under Sec. 1, Article IV of the Constitution, which provides:

Sec. 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution. . . .

This forecloses any further question about the Philippine citizenship of respondent William
Gatchalian.

The Court is not unaware of Woong Woo Yiu vs. Vivo (13 SCRA 552 [1965]) relied upon by
petitioners. The ruling arrived thereat, however, cannot apply in the case at bar for the simple
reason that the parties therein testified to have been married in China by a village leader, which
undoubtedly is not among those authorized to solemnize marriage as provided in Art. 56 of the
Civil Code (now Art. 7, Family Code).

Premises considered, the Court deems it unnecessary to resolve the other issues raised by the
parties.

WHEREFORE, G.R. Nos. 95122-23 is DISMISSED for lack of merit; G.R. Nos. 95612-13 is
hereby GRANTED and respondent William Gatchalian is declared a Filipino citizen. Petitioners
are hereby permanently enjoined from continuing with the deportation proceedings docketed as
DC No. 90-523 for lack of jurisdiction over respondent Gatchalian, he being a Filipino citizen;
Civil Cases No. 90-54214 and 3431-V-90 pending before respondent judges are likewise
DISMISSED. Without pronouncement as to costs.

SO ORDERED.

Gutierrez, Jr., Gancayco, Sarmiento, Griño-Aquino and Medialdea, JJ., concur.

Fernan, C.J., and Narvasa, J., concur in the result.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 86564 August 1, 1989

RAMON L. LABO, JR., petitioner,

vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L.
LARDIZABAL, respondents

Estelito P. Mendoza for petitioner.

Rillera and Quintana for private respondent.

CRUZ, J.:

The petitioner asks this Court to restrain the Commission on Elections from looking into
the question of his citizenship as a qualification for his office as Mayor of Baguio City.
The allegation that he is a foreigner, he says, is not the issue. The issue is whether or
not the public respondent has jurisdiction to conduct any inquiry into this matter,
considering that the petition for quo warranto against him was not filed on time.

It is noteworthy that this argument is based on the alleged tardiness not of the petition
itself but of the payment of the filing fee, which the petitioner contends was an
indispensable requirement. The fee is, curiously enough, all of P300.00 only. This
brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it
is shown that the petition was indeed filed beyond the reglementary period, there is no
question that this petition must be granted and the challenge abated.

The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on

January 20, 1988. The petition for quo warranto was filed by the private respondent on
January 26, 1988, but no filing fee was paid on that date. This fee was finally paid on
February 10, 1988, or twenty-one days after his proclamation. As the petition by itself
alone was ineffectual without the filing fee, it should be deemed filed only when the fee
was paid. This was done beyond the reglementary period provided for under Section
253 of the Omnibus Election Code reading as follows:

SEC. 253. Petition for quo warranto. — Any voter contesting the election
of a 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 result of the
election.

The petitioner adds that the payment of the filing fee is required under Rule 36, Section
5, of the Procedural Rules of the COMELEC providing that —

Sec. 5. No petition for quo warranto shall be given due course without the
payment of a filing fee in the amount of Three Hundred Pesos (P300.00)
and the legal research fee as required by law.

and stresses that there is abundant jurisprudence holding that the payment of the filing
fee is essential to the timeliness of the filling of the petition itself. He cites many rulings
of the Court to this effect, specifically Manchester v. Court of Appeals. 1

For his part, the private respondent denies that the filing fee was paid out of time. In fact
he says, it was flied ahead of time. His point is that when he filed his "Petition for Quo
Warranto with Prayer for Immediate Annulment of Proclamation and Restraining Order
or Injunction" on January 26, 1988, the COMELEC treated it as a pre-proclamation
controversy and docketed it as SPC Case No. 88-288. No docket fee was collected
although it was offered. It was only on February 8, 1988, that the COMELEC decided to
treat his petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19,
serving him notice on February 10, 1988. He immediately paid the filing fee on that
date.

The private respondent argues further that during the period when the COMELEC
regarded his petition as a pre-proclamation controversy, the time for filing an election
protest or quo warranto proceeding was deemed suspended under Section 248 of the
Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC
Rules of Procedure cited by the petitioner, became effective only on November 15,
1988, seven days after publication of the said Rules in the Official Gazette pursuant to
Section 4, Rule 44 thereof. 3 These rules could not retroact to January 26,1988, when
he filed his petition with the COMELEC.

In his Reply, the petitioner argues that even if the Omnibus Election Code did not
require it, the payment of filing fees was still necessary under Res. No. 1996 and,
before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12,
1988, and February 26, 1980, respectively. To this, the private respondent counters that
the latter resolution was intended for the local elections held on January 30, 1980, and
did not apply to the 1988 local elections, which were supposed to be governed by the
first-mentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988,
following the lapse of seven days after its publication as required by RA No. 6646,
otherwise known as the Electoral Reform Law of 1987, which became effective on
January 5, 1988. Its Section 30 provides in part:

Sec. 30. Effectivity of Regulations and Orders of the Commission. — The

rules and regulations promulgated by the Commission shall take effect on
the seventh day after their publication in the Official Gazette or in at least
(2) daily newspapers of general circulation in the Philippines.

The Court has considered the arguments of the parties and holds that the petition for
quo warranto was filed on time. We agree with the respondents that the fee was paid
during the ten-day period as extended by the pendency of the petition when it was
treated by the COMELEC as a pre-proclamation proceeding which did not require the
payment of a filing fee. At that, we reach this conclusion only on the assumption that the
requirement for the payment of the fees in quo warranto proceedings was already
effective. There is no record that Res. No. 1450 was even published; and as for Res.
No. 1996, this took effect only on March 3, 1988, seven days after its publication in the
February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or
after the petition was filed.

The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the resolutions became
effective "immediately upon approval" simply because it was so provided therein. We
held in that case that publication was still necessary under the due process clause
despite such effectivity clause.

In any event, what is important is that the filing fee was paid, and whatever delay there
may have been is not imputable to the private respondent's fault or neglect. It is true
that in the Manchester Case, we required the timely payment of the filing fee as a
precondition for the timeliness of the filing of the case itself. In Sun Insurance Office,
Ltd. v. Asuncion, 5 however this Court, taking into account the special circumstances of
that case, declared:

This Court reiterates the rule that the trial court acquires jurisdiction over a
case only upon the payment of the prescribed filing fee. However, the
court may allow the payment of the said fee within a reasonable time. In
the event of non-compliance therewith, the case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of
Procedure adopted on June 20, 1988, thus:

Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed

are not paid, the Commission may refuse to take action thereon until they
are paid and may dismiss the action or the proceeding. (Emphasis
supplied.)

The Court notes that while arguing the technical point that the petition for quo warranto
should be dismissed for failure to pay the filing fee on time, the petitioner would at the
same time minimize his alleged lack of citizenship as "a futile technicality," It is
regrettable, to say the least, that the requirement of citizenship as a qualification for
public office can be so demeaned. What is worse is that it is regarded as an even less
important consideration than the reglementary period the petitioner insists upon.

This matter should normally end here as the sole issue originally raised by the petitioner
is the timeliness of the quo warranto proceedings against him. However, as his
citizenship is the subject of that proceeding, and considering the necessity for an early
resolution of that more important question clearly and urgently affecting the public
interest, we shall directly address it now in this same action.

The Court has similarly acted in a notable number of cases, thus:

From the foregoing brief statement of the nature of the instant case, it
would appear that our sole function in this proceeding should be to resolve
the single issue of whether or not the Court of Appeals erred in ruling that
the motion for new trial of the GSIS in question should indeed be deemed
pro forma. But going over the extended pleadings of both parties, the
Court is immediately impressed that substantial justice may not be timely
achieved, if we should decide this case upon such a technical ground
alone. We have carefully read all the allegations and arguments of the
parties, very ably and comprehensively expounded by evidently
knowledgeable and unusually competent counsel, and we feel we can
better serve the interests of justice by broadening the scope of our inquiry,
for as the record before us stands, we see that there is enough basis for
us to end the basic controversy between the parties here and now,
dispensing, however, with procedural steps which would not anyway affect
substantially the merits of their respective claims. 6

xxx

While it is the fault of the petitioner for appealing to the wrong court and
thereby allowing the period for appeal to lapse, the more correct
procedure was for the respondent court to forward the case to the proper
court which was the Court of Appeals for appropriate action. Considering,
however, the length of time that this case has been pending, we apply the
rule in the case of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the
principle enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA
37) which states:

... it is a cherished rule of procedure for this Court to always

strive to settle the entire controversy in a single proceeding
leaving no root or branch to bear the seeds of future
litigation. No useful purpose will be served if this case is
remanded to the trial court only to have its decision raised
again to the Intermediate Appellate Court and from there to
this Court. (p. 43)

Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et

al. (G.R. No. 50141, January 29, 1988), we stated that:

... But all those relevant facts are now before this Court. And those facts
dictate the rendition of a verdict in the petitioner's favor. There is therefore
no point in referring the case back to the Court of Appeals. The facts and
the legal propositions involved will not change, nor should the ultimate
judgment. Considerable time has already elapsed and, to serve the ends
of justice, it is time that the controversy is finally laid to rest. (See Sotto v.
Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga Lumber
Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98
SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v.
Mabilangan, 105 Phil. 162).lâwphî1.ñèt Sound practice seeks to
accommodate the theory which avoids waste of time, effort and expense,
both to the parties and the government, not to speak of delay in the
disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A
marked characteristic of our judicial set-up is that where the dictates of
justice so demand ... the Supreme Court should act, and act with finality.'
(Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil.
230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice
do demand that this Court act, and act with finality. 7

xxx

Remand of the case to the lower court for further reception of evidence is
not necessary where the court is in a position to resolve the dispute based
on the records before it. On many occasions, the Court, in the public
interest and the expeditious administration of justice, has resolved actions
on the merits instead of remanding them to the trial court for further
proceedings, such as where the ends of justice would not be subserved by
the remand of the case or when public interest demands an early
disposition of the case or where the trial court had already received all the
evidence of the parties. 8
This course of action becomes all the more justified in the present case where, to repeat
for stress, it is claimed that a foreigner is holding a public office.

We also note in his Reply, the petitioner says:

In adopting private respondent's comment, respondent COMELEC

implicitly adopted as "its own" private respondent's repeated assertion that
petitioner is no longer a Filipino citizen. In so doing, has not respondent
COMELEC effectively disqualified itself, by reason of prejudgment, from
resolving the petition for quo warranto filed by private respondent still
pending before it? 9

This is still another reason why the Court has seen fit to rule directly on the merits of this
case.

Going over the record, we find that there are two administrative decisions on the
question of the petitioner's citizenship. The first was rendered by the Commission on
Elections on May 12, 1982, and found the petitioner to be a citizen of the Philippines. 10
The second was rendered by the Commission on Immigration and Deportation on
September 13, 1988, and held that the petitioner was not a citizen of the Philippines. 11

The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with
Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner
Bacungan concurring in the dismissal of the petition "without prejudice to the issue of
the respondent's citizenship being raised anew in a proper case." Commissioner
Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision
until representations shall have been made with the Australian Embassy for official
verification of the petitioner's alleged naturalization as an Australian.

The second decision was unanimously rendered by Chairman Miriam Defensor-

Santiago and Commissioners Alano and Geraldez of the Commission on Immigration
and Deportation. It is important to observe that in the proceeding before the COMELEC,
there was no direct proof that the herein petitioner had been formally naturalized as a
citizen of Australia. This conjecture, which was eventually rejected, was merely inferred
from the fact that he had married an Australian citizen, obtained an Australian passport,
and registered as an alien with the CID upon his return to this country in 1980.

On the other hand, the decision of the CID took into account the official statement of the
Australian Government dated August 12, 1984, through its Consul in the Philippines,
that the petitioner was still an Australian citizen as of that date by reason of his
naturalization in 1976. That statement 12 is reproduced in full as follows:

I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a

certificate of appointment signed and sealed by the Australian Minister of State for
Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent signed
and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983,
do hereby provide the following statement in response to the subpoena Testificandum
dated 9 April 1984 in regard to the Petition for disqualification against RAMON LABO,
JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the statement is true and
correct.

STATEMENT

A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was

married in the Philippines to an Australian citizen. As the spouse of an
Australian citizen, he was not required to meet normal requirements for
the grant of citizenship and was granted Australian citizenship by Sydney
on 28 July 1976.

B) Any person over the age of 16 years who is granted Australian

citizenship must take an oath of allegiance or make an affirmation of
allegiance. The wording of the oath of affirmation is: "I ..., renouncing all
other allegiance ..." etc. This need not necessarily have any effect on his
former nationality as this would depend on the citizenship laws of his
former country.

C) The marriage was declared void in the Australian Federal Court in

Sydney on 27 June 1980 on the ground that the marriage had been
bigamous.

D) According to our records LABO is still an Australian citizen.

E) Should he return to Australia, LABO may face court action in respect of

Section 50 of Australian Citizenship Act 1948 which relates to the giving of
false or misleading information of a material nature in respect of an
application for Australian citizenship. If such a prosecution was successful,
he could be deprived of Australian citizenship under Section 21 of the Act.

F) There are two further ways in which LABO could divest himself of
Australian citizenship:

(i) He could make a declaration of Renunciation of Australian citizenship

under Section 18 of the Australian Citizenship Act, or

(ii) If he acquired another nationality, (for example, Filipino) by a formal

and voluntary act other than marriage, then he would automatically lose as
Australian citizenship under Section 17 of the Act.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND

SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF
APRIL 1984. DONE AT MANILA IN THE PHILIPPINES.
(Signed) GRAHAM C. WEST Consul

This was affirmed later by the letter of February 1, 1988, addressed to the
private respondent by the Department of Foreign Affairs reading as
follows: 13

Sir:

With reference to your letter dated 1 February 1988, I wish to inform you
that inquiry made with the Australian Government through the Embassy of
the Philippines in Canberra has elicited the following information:

1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July

1976.

2) That prior to 17 July 1986, a candidate for Australian citizenship had to

either swear an oath of allegiance or make an affirmation of allegiance
which carries a renunciation of "all other allegiance.

Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO
SEVERINO, JR. Assistant Secretary

The decision also noted the oath of allegiance taken by every naturalized Australian
reading as follows:

OATH OF ALLEGIANCE

I, A.B., renouncing all other allegiance, swear by Almighty God that I will
be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia, Her heirs and successors according to law, and that I
will faithfully observe the laws of Australia and fulfill my duties as an
Australian citizen. 14

and the Affirmation of Allegiance, which declares:

AFFIRMATION OF ALLEGIANCE

I, A.B., renouncing all other allegiance, solemnly and sincerely promise

and declare that I will be faithful and bear true allegiance to Her Majesty
Elizabeth the Second, Queen of Australia, Her heirs and successors
according to law, and that I will faithfully observe the Laws of Australia and
fulfill my duties as an Australian citizen. 15

The petitioner does not question the authenticity of the above evidence. Neither does he
deny that he obtained Australian Passport No. 754705, which he used in coming back
to the Philippines in 1980, when he declared before the immigration authorities that he
was an alien and registered as such under Alien Certificate of Registration No. B-
323985. 16 He later asked for the change of his status from immigrant to a returning
former Philippine citizen and was granted Immigrant Certificate of Residence No.
223809. 17 He also categorically declared that he was a citizen of Australia in a number
of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction
of the barangay court on the ground that he was a foreigner. 18

The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes"
that did not divest the petitioner of his citizenship, although, as earlier noted, not all the
members joined in this finding. We reject this ruling as totally baseless. The petitioner is
not an unlettered person who was not aware of the consequences of his acts, let alone
the fact that he was assisted by counsel when he performed these acts.

The private respondent questions the motives of the COMELEC at that time and
stresses Labo's political affiliation with the party in power then, but we need not go into
that now.

There is also the claim that the decision can no longer be reversed because of the
doctrine of res judicata, but this too must be dismissed. This doctrine does not apply to
questions of citizenship, as the Court has ruled in several cases. 19 Moreover, it does
not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the
answer, having been invoked only when the petitioner filed his reply 20 to the private
respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of
parties, is not present in this case.

The petitioner's contention that his marriage to an Australian national in 1976 did not
automatically divest him of Philippine citizenship is irrelevant. There is no claim or
finding that he automatically ceased to be a Filipino because of that marriage. He
became a citizen of Australia because he was naturalized as such through a formal and
positive process, simplified in his case because he was married to an Australian citizen.
As a condition for such naturalization, he formally took the Oath of Allegiance and/or
made the Affirmation of Allegiance, both quoted above. Renouncing all other allegiance,
he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia ..." and to fulfill his duties "as an Australian citizen."

The petitioner now claims that his naturalization in Australia made him at worst only a
dual national and did not divest him of his Philippine citizenship. Such a specious
argument cannot stand against the clear provisions of CA No. 63, which enumerates the
modes by which Philippine citizenship may be lost. Among these are: (1) naturalization
in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an
oath of allegiance to support the Constitution or laws of a foreign country, all of which
are applicable to the petitioner. It is also worth mentioning in this connection that under
Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was
annulled after it was found that his marriage to the Australian citizen was bigamous, that
circumstance alone did not automatically restore his Philippine citizenship. His
divestiture of Australian citizenship does not concern us here. That is a matter between
him and his adopted country. What we must consider is the fact that he voluntarily and
freely rejected Philippine citizenship and willingly and knowingly embraced the
citizenship of a foreign country. The possibility that he may have been subsequently
rejected by Australia, as he claims, does not mean that he has been automatically
reinstated as a citizen of the Philippines.

Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired

by direct act of Congress, by naturalization, or by repatriation. It does not appear in the
record, nor does the petitioner claim, that he has reacquired Philippine citizenship by
any of these methods. He does not point to any judicial decree of naturalization as to
any statute directly conferring Philippine citizenship upon him. Neither has he shown
that he has complied with PD No. 725, providing that:

... (2) natural-born Filipinos who have lost their Philippine citizenship may
reacquire Philippine citizenship through repatriation by applying with the
Special Committee on Naturalization created by Letter of Instruction No.
270, and, if their applications are approved, taking the necessary oath of
allegiance to the Republic of the Philippines, after which they shall be
deemed to have reacquired Philippine citizenship. The Commission on
Immigration and Deportation shall thereupon cancel their certificate of
registration. (Emphasis supplied.)

That is why the Commission on Immigration and Deportation rejected his application for
the cancellation of his alien certificate of registration. And that is also the reason we
must deny his present claim for recognition as a citizen of the Philippines.

The petitioner is not now, nor was he on the day of the local elections on January 18,
1988, a citizen of the Philippines. In fact, he was not even a qualified voter under the
Constitution itself because of his alienage. 21 He was therefore ineligible as a candidate
for mayor of Baguio City, under Section 42 of the Local Government Code providing in
material part as follows:

Sec. 42. Qualifications. — An elective local official must be a citizen of the

Philippines, at least twenty-three years of age on election day, a qualified
voter registered as such in the barangay, municipality, city or province
where he proposes to be elected, a resident therein for at least one year
at the time of the filing of his certificate of candidacy, and able to read and
write English, Filipino, or any other local language or dialect.

The petitioner argues that his alleged lack of citizenship is a "futile technicality" that
should not frustrate the will of the electorate of Baguio City, who elected him by a
"resonant and thunderous majority." To be accurate, it was not as loud as all that, for his
lead over the second-placer was only about 2,100 votes. In any event, the people of
that locality could not have, even unanimously, changed the requirements of the Local
Government Code and the Constitution. The electorate had no power to permit a
foreigner owing his total allegiance to the Queen of Australia, or at least a stateless
individual owing no allegiance to the Republic of the Philippines, to preside over them
as mayor of their city. Only citizens of the Philippines have that privilege over their
countrymen.

The probability that many of those who voted for the petitioner may have done so in the
belief that he was qualified only strengthens the conclusion that the results of the
election cannot nullify the qualifications for the office now held by him. These
qualifications are continuing requirements; once any of them is lost during incumbency,
title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting
requirements were not subsequently lost but were not possessed at all in the first place
on the day of the election. The petitioner was disqualified from running as mayor and,
although elected, is not now qualified to serve as such.

Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is
that as he obtained only the second highest number of votes in the election, he was
obviously not the choice of the people of Baguio city.

The latest ruling of the Court on this issue is Santos v. Commission on Elections 22
decided in 1985. In that case, the candidate who placed second was proclaimed elected
after the votes for his winning rival, who was disqualified as a turncoat and considered a
non-candidate, were all disregarded as stray. In effect, the second placer won by
default. That decision was supported by eight members of the Court then 23 with three
dissenting 24 and another two reserving their vote. 25 One was on official leave. 26

Re-examining that decision, the Court finds, and so holds, that it should be reversed in
favor of the earlier case of Geronimo v. Ramos, 27 Which represents the more logical
and democratic rule. That case, which reiterated the doctrine first announced in 1912 in
Topacio vs. Paredes 28 was supported by ten members of the Court 29 without any
dissent, although one reserved his vote, 30 another took no part 31 and two others were
on leave. 32 There the Court held:

... it would be extremely repugnant to the basic concept of the

constitutionally guaranteed right to suffrage if a candidate who has not
acquired the majority or plurality of votes is proclaimed a winner and
imposed as the representative of a constituency, the majority of which
have positively declared through their ballots that they do not choose him.

Sound policy dictates that public elective offices are filled by those who
have received the highest number of votes cast in the election for that
office, and it is a fundamental Idea in all republican forms of government
that no one can be declared elected and no measure can be declared
 carried unless he or it receives a majority or plurality of the legal votes
cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.)

The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the elective
office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there. However,
in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief
that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.

It remains to stress that the citizen of the Philippines must take pride in his status as
such and cherish this priceless gift that, out of more than a hundred other nationalities,
God has seen fit to grant him. Having been so endowed, he must not lightly yield this
precious advantage, rejecting it for another land that may offer him material and other
attractions that he may not find in his own country. To be sure, he has the right to
renounce the Philippines if he sees fit and transfer his allegiance to a state with more
allurements for him. 33 But having done so, he cannot expect to be welcomed back with
open arms once his taste for his adopted country turns sour or he is himself disowned
by it as an undesirable alien.

Philippine citizenship is not a cheap commodity that can be easily recovered after its
renunciation. It may be restored only after the returning renegade makes a formal act of
re-dedication to the country he has abjured and he solemnly affirms once again his total
and exclusive loyalty to the Republic of the Philippines. This may not be accomplished
by election to public office.

WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the
Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio
City. He is ordered to VACATE his office and surrender the same to the Vice-Mayor of
Baguio City, once this decision becomes final and executory. The temporary restraining
order dated January 31, 1989, is LIFTED.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin,

Sarmiento, Cortes, Griñ;o-Aquino Medialdea and Regalado, JJ., concur.

Immunity:
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-30671 November 28, 1973

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
HON. GUILLERMO P. VILLASOR, as Judge of the Court of First Instance of Cebu, Branch I, THE PROVINCIAL SHERIFF OF RIZAL,
THE SHERIFF OF QUEZON CITY, and THE SHERIFF OF THE CITY OF MANILA, THE CLERK OF COURT, Court of First Instance of
Cebu, P. J. KIENER CO., LTD., GAVINO UNCHUAN, AND INTERNATIONAL CONSTRUCTION CORPORATION, respondents.

Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P. Pardo for petitioner.

Andres T. Velarde and Marcelo B. Fernan for respondents.

FERNANDO, J.:

The Republic of the Philippines in this certiorari and prohibition proceeding challenges the validity of an order issued by respondent Judge
Guillermo P. Villasor, then of the Court of First Instance of Cebu, Branch I,1 declaring a decision final and executory and of an alias writ of
execution directed against the funds of the Armed Forces of the Philippines subsequently issued in pursuance thereof, the alleged ground
being excess of jurisdiction, or at the very least, grave abuse of discretion. As thus simply and tersely put, with the facts being undisputed
and the principle of law that calls for application indisputable, the outcome is predictable. The Republic of the Philippines is entitled to the
writs prayed for. Respondent Judge ought not to have acted thus. The order thus impugned and the alias writ of execution must be nullified.

In the petition filed by the Republic of the Philippines on July 7, 1969, a summary of facts was set forth thus: "7. On July 3, 1961, a decision
was rendered in Special Proceedings No. 2156-R in favor of respondents P. J. Kiener Co., Ltd., Gavino Unchuan, and International
Construction Corporation, and against the petitioner herein, confirming the arbitration award in the amount of P1,712,396.40, subject of
Special Proceedings. 8. On June 24, 1969, respondent Honorable Guillermo P. Villasor, issued an Order declaring the aforestated decision
of July 3, 1961 final and executory, directing the Sheriffs of Rizal Province, Quezon City [as well as] Manila to execute the said decision. 9.
Pursuant to the said Order dated June 24, 1969, the corresponding Alias Writ of Execution [was issued] dated June 26, 1969, .... 10. On the
strength of the afore-mentioned Alias Writ of Execution dated June 26, 1969, the Provincial Sheriff of Rizal (respondent herein) served
notices of garnishment dated June 28, 1969 with several Banks, specially on the "monies due the Armed Forces of the Philippines in the
form of deposits sufficient to cover the amount mentioned in the said Writ of Execution"; the Philippine Veterans Bank received the same
notice of garnishment on June 30, 1969 .... 11. The funds of the Armed Forces of the Philippines on deposit with the Banks, particularly, with
the Philippine Veterans Bank and the Philippine National Bank [or] their branches are public funds duly appropriated and allocated for the
payment of pensions of retirees, pay and allowances of military and civilian personnel and for maintenance and operations of the Armed
Forces of the Philippines, as per Certification dated July 3, 1969 by the AFP Controller,..."2. The paragraph immediately succeeding in such
petition then alleged: "12. Respondent Judge, Honorable Guillermo P. Villasor, acted in excess of jurisdiction [or] with grave abuse of
discretion amounting to lack of jurisdiction in granting the issuance of an alias writ of execution against the properties of the Armed Forces of
the Philippines, hence, the Alias Writ of Execution and notices of garnishment issued pursuant thereto are null and void."3 In the answer filed
by respondents, through counsel Andres T. Velarde and Marcelo B. Fernan, the facts set forth were admitted with the only qualification being
that the total award was in the amount of P2,372,331.40.4

The Republic of the Philippines, as mentioned at the outset, did right in filing this certiorari and prohibition proceeding. What was done by
respondent Judge is not in conformity with the dictates of the Constitution. .

It is a fundamental postulate of constitutionalism flowing from the juristic concept of sovereignty that the state as well as its government is
immune from suit unless it gives its consent. It is readily understandable why it must be so. In the classic formulation of Holmes: "A sovereign
is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no
legal right as against the authority that makes the law on which the right depends."5 Sociological jurisprudence supplies an answer not
dissimilar. So it was indicated in a recent decision, Providence Washington Insurance Co. v. Republic of the Philippines,6 with its affirmation
that "a continued adherence to the doctrine of non-suability is not to be deplored for as against the inconvenience that may be caused private
parties, the loss of governmental efficiency and the obstacle to the performance of its multifarious functions are far greater if such a
fundamental principle were abandoned and the availability of judicial remedy were not thus restricted. With the well known propensity on the
part of our people to go to court, at the least provocation, the loss of time and energy required to defend against law suits, in the absence of
such a basic principle that constitutes such an effective obstacle, could very well be imagined."7
This fundamental postulate underlying the 1935 Constitution is now made explicit in the revised charter. It is therein expressly provided: "The
State may not be sued without its consent."8 A corollary, both dictated by logic and sound sense from a basic concept is that public funds
cannot be the object of a garnishment proceeding even if the consent to be sued had been previously granted and the state liability
adjudged. Thus in the recent case of Commissioner of Public Highways v. San Diego,9 such a well-settled doctrine was restated in the
opinion of Justice Teehankee: "The universal rule that where the State gives its consent to be sued by private parties either by general or
special law, it may limit claimant's action 'only up to the completion of proceedings anterior to the stage of execution' and that the power of
the Courts ends when the judgment is rendered, since government funds and properties may not be seized under writs of execution or
garnishment to satisfy such judgments, is based on obvious considerations of public policy. Disbursements of public funds must be covered
by the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law." 10 Such a principle
applies even to an attempted garnishment of a salary that had accrued in favor of an employee. Director of Commerce and Industry v.
Concepcion, 11 speaks to that effect. Justice Malcolm as ponente left no doubt on that score. Thus: "A rule which has never been seriously
questioned, is that money in the hands of public officers, although it may be due government employees, is not liable to the creditors of these
employees in the process of garnishment. One reason is, that the State, by virtue of its sovereignty, may not be sued in its own courts except
by express authorization by the Legislature, and to subject its officers to garnishment would be to permit indirectly what is prohibited directly.
Another reason is that moneys sought to be garnished, as long as they remain in the hands of the disbursing officer of the Government,
belong to the latter, although the defendant in garnishment may be entitled to a specific portion thereof. And still another reason which covers
both of the foregoing is that every consideration of public policy forbids it." 12

In the light of the above, it is made abundantly clear why the Republic of the Philippines could rightfully allege a legitimate grievance.

WHEREFORE, the writs of certiorari and prohibition are granted, nullifying and setting aside both the order of June 24, 1969 declaring
executory the decision of July 3, 1961 as well as the alias writ of execution issued thereunder. The preliminary injunction issued by this Court
on July 12, 1969 is hereby made permanent.

Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.

Barredo, J, took no part.

SECOND DIVISION

G.R. No. 102667 February 23, 2000

AMADO J. LANSANG, petitioner,

vs.
COURT OF APPEALS, GENERAL ASSEMBLY OF THE BLIND, INC., and JOSE
IGLESIAS, respondents.

QUISUMBING, J.:

Before us is a petition to review the decision of the Court of Appeals in C.A. G.R. CV No.
27244, which set aside the ruling of the Regional Trial Court, Manila, Branch 8, in Civil Case
No. 88-43887, and ordered petitioner Amado J. Lansang to pay private respondent Jose Iglesias
P50,000.00 in moral damages, P10,000.00 in exemplary damages and P5,000.00 in attorney's
fees.
Like public streets, public parks are beyond the commerce of man. However, private respondents
were allegedly awarded a "verbal contract of lease" in 1970 by the National Parks Development
Committee (NPDC), a government initiated civic body engaged in the development of national
parks, including Rizal Park,1 but actually administered by high profile civic leaders and
journalists. Whoever in NPDC gave such "verbal" accommodation to private respondents was
unclear, for indeed no document or instrument appears on record to show the grantor of the
verbal license to private respondents to occupy a portion of the government park dedicated to the
national hero's memory.

Private respondents were allegedly given office and library space as well as kiosks area selling
food and drinks. One such kiosk was located along T.M. Kalaw St., in front of the Army and
Navy Club. Private respondent General Assembly of the Blind, Inc. (GABI) was to remit to
NPDC, 40 percent of the profits derived from operating the kiosks,2 without again anything
shown in the record who received the share of the profits or how they were used or spent.

With the change of government after the EDSA Revolution, the new Chairman of the NPDC,
herein petitioner, sought to clean up Rizal Park. In a written notice dated February 23, 1988 and
received by private respondents on February 29, 1988, petitioner terminated the so-called verbal
agreement with GABI and demanded that the latter vacate the premises and the kiosks it ran
privately within the public park.3 In another notice dated March 5, 1988, respondents were given
until March 8, 1988 to vacate.4

The latter notice was signed by private respondent Iglesias, GABI president, allegedly to indicate
his conformity to its contents. However, Iglesias, who is totally blind, claims that he was
deceived into signing the notice. He was allegedly told by Ricardo Villanueva, then chief warden
of Rizal Park, that he was merely acknowledging receipt of the notice. Although blind, Iglesias
as president was knowledgeable enough to run GABI as well as its business.

On the day of the supposed eviction, GABI filed an action for damages and injunction in the
Regional Trial Court against petitioner, Villanueva, and "all persons acting on their behalf".5 The
trial court issued a temporary restraining order on the same day.6

The TRO expired on March 28, 1988. The following day, GABI was finally evicted by NPDC.

GABI's action for damages and injunction was subsequently dismissed by the RTC, ruling that
the complaint was actually directed against the State which could not be sued without its consent.
Moreover, the trial court ruled that GABI could not claim damages under the alleged oral lease
agreement since GABI was a mere accommodation concessionaire. As such, it could only
recover damages upon proof of the profits it could realize from the conclusion. The trial court
noted that no such proof was presented.1âwphi1.nêt

On appeal, the Court of Appeals reversed the decision of the trial court.

The Court of Appeals ruled that the mere allegation that a government official is being sued in
his official capacity is not enough to protect such official from liability for acts done without or
in excess of his authority.7 Granting that petitioner had the authority to evict GABI from Rizal
Park, "the abusive and capricious manner in which that authority was exercised amounted to a
legal wrong for which he must now be held liable for damages"8 according to the Court of
Appeals.

The Court of Appeals noted that, as the trial court observed, the eviction of GABI came at the
heels of two significant incidents. First, after private respondent Iglesias extended monetary
support to striking workers of the NPDC, and second, after Iglesias sent the Tanodbayan, a letter
on November 26, 1987, denouncing alleged graft and corruption in the NPDC.9 These, according
to the Court of Appeals, should not have been taken against GABI, which had been occupying
Rizal Park for nearly 20 years. GABI was evicted purportedly for violating its verbal agreement
with NPDC.10 However, the Court of Appeals pointed out that NPDC failed to present proof of
such violation.11

The Court of Appeals found petitioner liable for damages under Articles 19, 21, and 24 of the
Civil Code.12

The Court of Appeals absolved from liability all other persons impleaded in GABI's complaint
since it appeared that they were merely acting under the orders of petitioner. The new officers of
NPDC, additionally impleaded by GABI, were likewise absolved from liability, absent any
showing that they participated in the acts complained of. Petitioner was ordered to pay private
respondent Iglesias moral and exemplary damages and attorney's fees.

Hence, this petition, in which petitioner raises the following issues:

I. WHETHER OR NOT RESPONDENT COURT ERRED IN NOT HOLDING THAT

PRIVATE RESPONDENTS' COMPLAINT AGAINST PETITIONER, AS CHAIRMAN
OF NPDC, AND HIS CO-DEFENDANTS IN CIVIL CASE NO. 88-43887, IS IN
EFFECT A SUIT AGAINST THE STATE WHICH CANNOT BE SUED WITHOUT
ITS CONSENT.

II. WHETHER OR NOT RESPONDENT COURT ERRED IN NOT HOLDING THAT

PETITIONER'S ACT OF TERMINATING RESPONDENT GABI'S CONCESSION IS
VALID AND DONE IN THE LAWFUL PERFORMANCE OF OFFICIAL DUTY.13

Petitioner insists that the complaint filed against him is in reality a complaint against the State,
which could not prosper without the latter's consent. He anchors his argument on the fact that
NPDC is a government agency, and that when he ordered the eviction of GABI, he was acting in
his capacity as chairman of NPDC. Petitioner avers that the mere allegation that he was being
sued in his personal capacity did not remove the case from the coverage of the law of public
officers and the doctrine of state immunity.

Petitioner points out that Iglesias signed the notice of eviction to indicate his conformity thereto.
He contends that as evidence of private respondents' bad faith, they sued petitioner instead of
complying with their undertaking to vacate their library and kiosk at Rizal Park.
Petitioner adds that during the actual eviction, no untoward incident occurred. GABI's properties
were properly inventoried and stored.

According to petitioner, the Court of Appeals' observation that the eviction was prompted by
Iglesias' support for striking NPDC workers and the letter-complaint sent to the Tanodbayan is
merely conjectural.

Finally, petitioner avers that the move to evict GABI and award the spaces it occupied to another
group was an executive policy decision within the discretion of NPDC. GABI's possession of the
kiosks as concessionaire was by mere tolerance of NPDC and, thus, such possession may be
withdrawn at any time, with or without cause.

On the other hand, private respondents aver that petitioner acted beyond the scope of his
authority when he showed malice and bad faith in ordering GABI's ejectment from Rizal Park.
Quoting from the decision of the Court of Appeals, private respondents argue that petitioner is
liable for damages for performing acts "to injure an individual rather than to discharge a public
duty."14

While private respondents recognize the authority of petitioner to terminate the agreement with
GABI "if [the contract] is prejudicial to the interest of the NPDC,"15 they maintain that
petitioner's personal interest, and not that of the NPDC, was the root cause of GABI's ejecment.

The doctrine of state immunity from suit applies to complaints filed against public officials for
acts done in the performance of their duties. The rule is that the suit must be regarded as one
against the state where satisfaction of the judgment against the public official concerned will
require the state itself to perform a positive act, such as appropriation of the amount necessary to
pay the damages awarded to the plaintiff.16

The rule does not apply where the public official is charged in his official capacity for acts that
are unlawful and injurious to the rights of others.17 Public officials are not exempt, in their
personal capacity, from liability arising from acts committed in bad faith.18

Neither does it apply where the public official is clearly being sued not in his official capacity
but in his personal capacity, although the acts complained of may have been committed while he
occupied a public position.

We are convinced that petitioner is being sued not in his capacity as NPDC chairman but in his
personal capacity. The complaint filed by private respondents in the RTC merely identified
petitioner as chairman of the NPDC, but did not categorically state that he is being sued in that
capacity.19 Also, it is evident from paragraph 4 of said complaint that petitioner was sued
allegedly for having personal motives in ordering the ejectment of GABI from Rizal Park.

4. Defendant AMADO J. LANSANG, JR., the Chairman of the National Parks

Development Committee, acting under the spirit of revenge, ill-will, evil motive and
personal resentment against plaintiff JOSE IGLESIAS, served on the plaintiff
corporation a letter, dated February 23, 1988 terminating plaintiffs lease agreement with a
 demand for the plaintiff corporation to vacate its office premises. . .20 (Emphasis
supplied.)

The parties do not dispute that it was petitioner who ordered the ejectment of GABI from their
office and kiosk at Rizal Park. There is also no dispute that petitioner, as chairman of the NPDC
which was the agency tasked to administer Rizal Park, had the authority to terminate the
agreement with GABI21 and order the organization's ejectment. The question now is whether or
not petitioner abused his authority in ordering the ejectment of private respondents.

We find, however, no evidence of such abuse of authority on record. As earlier stated, Rizal Park
is beyond the commerce of man and, thus, could not be the subject of a lease contract.
Admittedly, there was no written contract. That private respondents were allowed to occupy
office and kiosk spaces in the park was only a matter of accommodation by the previous
administrator. This being so, also admittedly, petitioner may validly discontinue the
accommodation extended to private respondents, who may be ejected from the park when
necessary. Private respondents cannot and does not claim a vested right to continue to occupy
Rizal Park.

The Court of Appeals awarded private respondent Iglesias moral and exemplary damages and
attorney's fees. However, we find no evidence on record to support Iglesias' claim that he
suffered moral injury as a result of GABI's ejectment from Rizal Park. Absent any satisfactory
proof upon which the Court may base the amount of damages suffered, the award of moral
damages cannot be sustained.22

Neither can we sustain the award of exemplary damages, which may only be awarded in addition
to moral, temperate, liquidated, or compensatory damages.23 We also disallow the award for
attorney's fees, which can only be recovered per stipulation of the parties, which is absent in this
case. There is no showing that any of the exceptions justifying the award of attorney's fees absent
a stipulation is present in this case.24

WHEREFORE, the instant petition is GRANTED. The decision of the Court of Appeals in CA-
G.R. CV No. 27244 is hereby SET ASIDE, and the DISMISSAL of the complaint for damages
by the trial court for want of merit is AFFIRMED. No costs.

SO ORDERED.1âwphi1.nêt
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-52179 April 8, 1991

MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner

vs.
HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIÑA, IAUREANO BANIÑA,
JR., SOR MARIETA BANIÑA, MONTANO BANIÑA, ORJA BANIÑA, AND LYDIA R.
BANIÑA, respondents.

Mauro C. Cabading, Jr. for petitioner.

Simeon G. Hipol for private respondent.

MEDIALDEA, J.:

This is a petition for certiorari with prayer for the issuance of a writ of preliminary mandatory
injunction seeking the nullification or modification of the proceedings and the orders issued by
the respondent Judge Romeo N. Firme, in his capacity as the presiding judge of the Court of First
Instance of La Union, Second Judicial District, Branch IV, Bauang, La Union in Civil Case No.
107-BG, entitled "Juana Rimando Baniña, et al. vs. Macario Nieveras, et al." dated November 4,
1975; July 13, 1976; August 23,1976; February 23, 1977; March 16, 1977; July 26, 1979;
September 7, 1979; November 7, 1979 and December 3, 1979 and the decision dated October 10,
1979 ordering defendants Municipality of San Fernando, La Union and Alfredo Bislig to pay,
jointly and severally, the plaintiffs for funeral expenses, actual damages consisting of the loss of
earning capacity of the deceased, attorney's fees and costs of suit and dismissing the complaint
against the Estate of Macario Nieveras and Bernardo Balagot.

The antecedent facts are as follows:

Petitioner Municipality of San Fernando, La Union is a municipal corporation existing under and
in accordance with the laws of the Republic of the Philippines. Respondent Honorable Judge
Romeo N. Firme is impleaded in his official capacity as the presiding judge of the Court of First
Instance of La Union, Branch IV, Bauang, La Union. While private respondents Juana Rimando-
Baniña, Laureano Baniña, Jr., Sor Marietta Baniña, Montano Baniña, Orja Baniña and Lydia R.
Baniña are heirs of the deceased Laureano Baniña Sr. and plaintiffs in Civil Case No. 107-Bg
before the aforesaid court.

At about 7 o'clock in the morning of December 16, 1965, a collision occurred involving a
passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a
gravel and sand truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump
truck of the Municipality of San Fernando, La Union and driven by Alfredo Bislig. Due to the
impact, several passengers of the jeepney including Laureano Baniña Sr. died as a result of the
injuries they sustained and four (4) others suffered varying degrees of physical injuries.

On December 11, 1966, the private respondents instituted a compliant for damages against the
Estate of Macario Nieveras and Bernardo Balagot, owner and driver, respectively, of the
passenger jeepney, which was docketed Civil Case No. 2183 in the Court of First Instance of La
Union, Branch I, San Fernando, La Union. However, the aforesaid defendants filed a Third Party
Complaint against the petitioner and the driver of a dump truck of petitioner.

Thereafter, the case was subsequently transferred to Branch IV, presided over by respondent
judge and was subsequently docketed as Civil Case No. 107-Bg. By virtue of a court order dated
May 7, 1975, the private respondents amended the complaint wherein the petitioner and its
regular employee, Alfredo Bislig were impleaded for the first time as defendants. Petitioner filed
its answer and raised affirmative defenses such as lack of cause of action, non-suability of the
State, prescription of cause of action and the negligence of the owner and driver of the passenger
jeepney as the proximate cause of the collision.

In the course of the proceedings, the respondent judge issued the following questioned orders, to
wit:

(1) Order dated November 4, 1975 dismissing the cross-claim against Bernardo Balagot;

(2) Order dated July 13, 1976 admitting the Amended Answer of the Municipality of San
Fernando, La Union and Bislig and setting the hearing on the affirmative defenses only
with respect to the supposed lack of jurisdiction;

(3) Order dated August 23, 1976 deferring there resolution of the grounds for the Motion
to Dismiss until the trial;

(4) Order dated February 23, 1977 denying the motion for reconsideration of the order of
July 13, 1976 filed by the Municipality and Bislig for having been filed out of time;

(5) Order dated March 16, 1977 reiterating the denial of the motion for reconsideration of
the order of July 13, 1976;

(6) Order dated July 26, 1979 declaring the case deemed submitted for decision it
appearing that parties have not yet submitted their respective memoranda despite the
court's direction; and

(7) Order dated September 7, 1979 denying the petitioner's motion for reconsideration
and/or order to recall prosecution witnesses for cross examination.

On October 10, 1979 the trial court rendered a decision, the dispositive portion is hereunder
quoted as follows:
 IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby rendered for the
plaintiffs, and defendants Municipality of San Fernando, La Union and Alfredo Bislig are
ordered to pay jointly and severally, plaintiffs Juana Rimando-Baniña, Mrs. Priscilla B.
Surell, Laureano Baniña Jr., Sor Marietta Baniña, Mrs. Fe B. Soriano, Montano Baniña,
Orja Baniña and Lydia B. Baniña the sums of P1,500.00 as funeral expenses and
P24,744.24 as the lost expected earnings of the late Laureano Baniña Sr., P30,000.00 as
moral damages, and P2,500.00 as attorney's fees. Costs against said defendants.

The Complaint is dismissed as to defendants Estate of Macario Nieveras and Bernardo

Balagot.

SO ORDERED. (Rollo, p. 30)

Petitioner filed a motion for reconsideration and for a new trial without prejudice to another
motion which was then pending. However, respondent judge issued another order dated
November 7, 1979 denying the motion for reconsideration of the order of September 7, 1979 for
having been filed out of time.

Finally, the respondent judge issued an order dated December 3, 1979 providing that if
defendants municipality and Bislig further wish to pursue the matter disposed of in the order of
July 26, 1979, such should be elevated to a higher court in accordance with the Rules of Court.
Hence, this petition.

Petitioner maintains that the respondent judge committed grave abuse of discretion amounting to
excess of jurisdiction in issuing the aforesaid orders and in rendering a decision. Furthermore,
petitioner asserts that while appeal of the decision maybe available, the same is not the speedy
and adequate remedy in the ordinary course of law.

On the other hand, private respondents controvert the position of the petitioner and allege that the
petition is devoid of merit, utterly lacking the good faith which is indispensable in a petition for
certiorari and prohibition. (Rollo, p. 42.) In addition, the private respondents stress that
petitioner has not considered that every court, including respondent court, has the inherent power
to amend and control its process and orders so as to make them conformable to law and justice.
(Rollo, p. 43.)

The controversy boils down to the main issue of whether or not the respondent court committed
grave abuse of discretion when it deferred and failed to resolve the defense of non-suability of
the State amounting to lack of jurisdiction in a motion to dismiss.

In the case at bar, the respondent judge deferred the resolution of the defense of non-suability of
the State amounting to lack of jurisdiction until trial. However, said respondent judge failed to
resolve such defense, proceeded with the trial and thereafter rendered a decision against the
municipality and its driver.

The respondent judge did not commit grave abuse of discretion when in the exercise of its
judgment it arbitrarily failed to resolve the vital issue of non-suability of the State in the guise of
the municipality. However, said judge acted in excess of his jurisdiction when in his decision
dated October 10, 1979 he held the municipality liable for the quasi-delict committed by its
regular employee.

The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of
the Constitution, to wit: "the State may not be sued without its consent."

Stated in simple parlance, the general rule is that the State may not be sued except when it gives
consent to be sued. Consent takes the form of express or implied consent.

Express consent may be embodied in a general law or a special law. The standing consent of the
State to be sued in case of money claims involving liability arising from contracts is found in Act
No. 3083. A special law may be passed to enable a person to sue the government for an alleged
quasi-delict, as in Merritt v. Government of the Philippine Islands (34 Phil 311). (see United
States of America v. Guinto, G.R. No. 76607, February 26, 1990, 182 SCRA 644, 654.)

Consent is implied when the government enters into business contracts, thereby descending to
the level of the other contracting party, and also when the State files a complaint, thus opening
itself to a counterclaim. (Ibid)

Municipal corporations, for example, like provinces and cities, are agencies of the State when
they are engaged in governmental functions and therefore should enjoy the sovereign immunity
from suit. Nevertheless, they are subject to suit even in the performance of such functions
because their charter provided that they can sue and be sued. (Cruz, Philippine Political Law,
1987 Edition, p. 39)

A distinction should first be made between suability and liability. "Suability depends on the
consent of the state to be sued, liability on the applicable law and the established facts. The
circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it
can never be held liable if it does not first consent to be sued. Liability is not conceded by the
mere fact that the state has allowed itself to be sued. When the state does waive its sovereign
immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable."
(United States of America vs. Guinto, supra, p. 659-660)

Anent the issue of whether or not the municipality is liable for the torts committed by its
employee, the test of liability of the municipality depends on whether or not the driver, acting in
behalf of the municipality, is performing governmental or proprietary functions. As emphasized
in the case of Torio vs. Fontanilla (G. R. No. L-29993, October 23, 1978. 85 SCRA 599, 606),
the distinction of powers becomes important for purposes of determining the liability of the
municipality for the acts of its agents which result in an injury to third persons.

Another statement of the test is given in City of Kokomo vs. Loy, decided by the Supreme Court
of Indiana in 1916, thus:

Municipal corporations exist in a dual capacity, and their functions are twofold. In one
they exercise the right springing from sovereignty, and while in the performance of the
 duties pertaining thereto, their acts are political and governmental. Their officers and
agents in such capacity, though elected or appointed by them, are nevertheless public
functionaries performing a public service, and as such they are officers, agents, and
servants of the state. In the other capacity the municipalities exercise a private,
proprietary or corporate right, arising from their existence as legal persons and not as
public agencies. Their officers and agents in the performance of such functions act in
behalf of the municipalities in their corporate or individual capacity, and not for the state
or sovereign power." (112 N.E., 994-995) (Ibid, pp. 605-606.)

It has already been remarked that municipal corporations are suable because their charters grant
them the competence to sue and be sued. Nevertheless, they are generally not liable for torts
committed by them in the discharge of governmental functions and can be held answerable only
if it can be shown that they were acting in a proprietary capacity. In permitting such entities to be
sued, the State merely gives the claimant the right to show that the defendant was not acting in
its governmental capacity when the injury was committed or that the case comes under the
exceptions recognized by law. Failing this, the claimant cannot recover. (Cruz, supra, p. 44.)

In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way
to the Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal
streets." (Rollo, p. 29.)

In the absence of any evidence to the contrary, the regularity of the performance of official duty
is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule
that the driver of the dump truck was performing duties or tasks pertaining to his office.

We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District
Engineer, and the Provincial Treasurer (102 Phil 1186) that "the construction or maintenance of
roads in which the truck and the driver worked at the time of the accident are admittedly
governmental activities."

After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that
the municipality cannot be held liable for the torts committed by its regular employee, who was
then engaged in the discharge of governmental functions. Hence, the death of the passenger ––
tragic and deplorable though it may be –– imposed on the municipality no duty to pay monetary
compensation.

All premises considered, the Court is convinced that the respondent judge's dereliction in failing
to resolve the issue of non-suability did not amount to grave abuse of discretion. But said judge
exceeded his jurisdiction when it ruled on the issue of liability.

ACCORDINGLY, the petition is GRANTED and the decision of the respondent court is hereby
modified, absolving the petitioner municipality of any liability in favor of private respondents.

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO
TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT,
respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.

Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville
Hussey for respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and

Commanding General of the Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and
failed "to discharge his duties as such command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces
in violation of the laws and customs of war" — comes before this Court seeking to establish the
illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from participating in the prosecution of
petitioner's case before the Military Commission and to permanently prohibit respondents from
proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the
provision of our constitutional law but also our local laws to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations
covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national
and international." Hence petitioner argues — "That in view off the fact that this commission has
been empanelled by virtue of an unconstitutional law an illegal order this commission is without
jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is
a diminution of our personality as an independent state and their appointment as prosecutor are a
violation of our Constitution for the reason that they are not qualified to practice law in the
Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecution the United State
not being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and
regulation governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that —

The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the of the nation.

In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental thereto in violation of the laws
and customs of war, of humanity and civilization are held accountable therefor. Consequently in
the promulgation and enforcement of Execution Order No. 68 the President of the Philippines
has acted in conformity with the generally accepted and policies of international law which are
part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of Yamashita vs.
Styer (L-129, 42 Off. Gaz., 664) 1 when we said —

War is not ended simply because hostilities have ceased. After

cessation of armed hostilities incident of war may remain pending which
should be disposed of as in time of war. An importance incident to a
conduct of war is the adoption of measure by the military command not
only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or
impede our military effort have violated the law of war. (Ex parte Quirin
 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military
commission for the trial and punishment of war criminals is an aspect of
waging war. And in the language of a writer a military commission has
jurisdiction so long as a technical state of war continues. This includes
the period of an armistice or military occupation up to the effective of a
treaty of peace and may extend beyond by treaty agreement. (Cowles
Trial of War Criminals by Military Tribunals, America Bar Association
Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to

consummate this unfinished aspect of war namely the trial and punishment of
war criminal through the issuance and enforcement of Executive Order No.
68.

Petitioner argues that respondent Military Commission has no Jurisdiction to

try petitioner for acts committed in violation of the Hague Convention and the
Geneva Convention because the Philippines is not a signatory to the first and
signed the second only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions form, part of and are wholly
based on the generally accepted principals of international law. In facts these
rules and principles were accepted by the two belligerent nation the United
State and Japan who were signatories to the two Convention, Such rule and
principles therefore form part of the law of our nation even if the Philippines
was not a signatory to the conventions embodying them for our Constitution
has been deliberately general and extensive in its scope and is not confined to
the recognition of rule and principle of international law as continued inn
treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly

committed the Philippines was under the sovereignty of United States and
thus we were equally bound together with the United States and with Japan to
the right and obligation contained in the treaties between the belligerent
countries. These rights and obligation were not erased by our assumption of
full sovereignty. If at all our emergency as a free state entitles us to enforce
the right on our own of trying and punishing those who committed crimes
against crimes against our people. In this connection it is well to remember
what we have said in the case of Laurel vs. Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth to

Republic does not affect the prosecution of those charged with the
crime of treason committed during then Commonwealth because it is an
offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our
government while we were a Commonwealth are triable and punishable by
our present Republic.

Petitioner challenges the participation of two American attorneys namely

Melville S. Hussey and Robert Port in the prosecution of his case on the
ground that said attorney's are not qualified to practice law in Philippines in
accordance with our Rules of court and the appointment of said attorneys as
prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal

governed by a special law and not by the Rules of court which govern ordinary
civil court. It has already been shown that Executive Order No. 68 which
provides for the organization of such military commission is a valid and
constitutional law. There is nothing in said executive order which requires that
counsel appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of Court. In facts it
is common in military tribunals that counsel for the parties are usually military
personnel who are neither attorneys nor even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our
nation sovereignty. It is only fair and proper that United States, which has
submitted the vindication of crimes against her government and her people to
a tribunal of our nation should be allowed representation in the trial of those
very crimes. If there has been any relinquishment of sovereignty it has not
been by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least that we could
do in the spirit of comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner
challenges the personality of attorneys Hussey and Port as prosecutors. It is
of common knowledge that the United State and its people have been equally
if not more greatly aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered a privilege for
our Republic that a leader nation should submit the vindication of the honor of
its citizens and its government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with
jurisdiction over the crimes charged which fall under the provisions of
Executive Order No. 68, and having said petitioner in its custody, this Court
will not interfere with the due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 173034 October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES,

petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER
SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY.
ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT
SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR.
NEMESIO T. GAKO, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an infant is
mother's milk. There is nothing greater than for a mother to nurture her beloved child straight
from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled
benefits of breastmilk. But how should this end be attained?

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to
nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant
International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and
go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of
the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded
as a co-respondent since respondents issued the questioned RIRR in their capacity as officials of
said executive agency.1

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28,
1986 by virtue of the legislative powers granted to the president under the Freedom Constitution.
One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article
112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted
by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence,
it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article
24 of said instrument provides that State Parties should take appropriate measures to diminish
infant and child mortality, and ensure that all segments of society, specially parents and children,
are informed of the advantages of breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7,
2006.

However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.

The main issue raised in the petition is whether respondents officers of the DOH acted without or
in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR.3

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR.

After the Comment and Reply had been filed, the Court set the case for oral arguments on June
19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to
wit:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;

2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Code);
 2.2 Whether pertinent international agreements1 entered into by the Philippines are part
of the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process
clause and are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.

_____________

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef
"2002 Global Strategy on Infant and Young Child Feeding;" and (3) various World
Health Assembly (WHA) Resolutions.

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real party-in-
interest, the Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to
wit:

The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its members.
An association has standing to file suit for its workers despite its lack of direct
interest if its members are affected by the action. An organization has standing to
assert the concerns of its constituents.

xxxx

x x x We note that, under its Articles of Incorporation, the respondent was organized x x
x to act as the representative of any individual, company, entity or association on matters
related to the manpower recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and its members
are in every practical sense identical. x x x The respondent [association] is but the
medium through which its individual members seek to make more effective the
expression of their voices and the redress of their grievances. 5 (Emphasis supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled
that an association has the legal personality to represent its members because the results of the
case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in
Executive Secretary, that the association is formed "to represent directly or through approved
representatives the pharmaceutical and health care industry before the Philippine Government
and any of its agencies, the medical professions and the general public."8 Thus, as an
organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care industry. Petitioner is duly
authorized9 to take the appropriate course of action to bring to the attention of government
agencies and the courts any grievance suffered by its members which are directly affected by the
RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent the
entire industry, would be remiss in its duties if it fails to act on governmental action that would
affect any of its industry members, no matter how few or numerous they are. Hence, petitioner,
whose legal identity is deemed fused with its members, should be considered as a real party-in-
interest which stands to be benefited or injured by any judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents
are part of the law of the land.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international instruments10 regarding infant
and young child nutrition. It is respondents' position that said international instruments are
deemed part of the law of the land and therefore the DOH may implement them through the
RIRR.

The Court notes that the following international instruments invoked by respondents, namely: (1)
The United Nations Convention on the Rights of the Child; (2) The International Covenant on
Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms
of Discrimination Against Women, only provide in general terms that steps must be taken by
State Parties to diminish infant and child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families, and ensure that women are provided
with services and nutrition in connection with pregnancy and lactation. Said instruments do not
contain specific provisions regarding the use or marketing of breastmilk substitutes.

The international instruments that do have specific provisions regarding breastmilk substitutes
are the ICMBS and various WHA Resolutions.

Under the 1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation.11 The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such as
local legislation. The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.12

Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall
be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate." Thus, treaties or conventional international law must go through a process prescribed by
the Constitution for it to be transformed into municipal law that can be applied to domestic
conflicts.13

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least
two-thirds of all members of the Senate as required under Section 21, Article VII of the 1987
Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has
the force and effect of law in this jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at
this point that the Code did not adopt the provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to the general public of products within the scope of the
ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other
marketing materials may be allowed if such materials are duly authorized and approved by
the Inter-Agency Committee (IAC).

On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts

the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all
nations. (Emphasis supplied)

embodies the incorporation method.14

In Mijares v. Ranada,15 the Court held thus:

[G]enerally accepted principles of international law, by virtue of the incorporation clause

of the Constitution, form part of the laws of the land even if they do not derive from
treaty obligations. The classical formulation in international law sees those customary
rules accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in
the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.16 (Emphasis supplied)

"Generally accepted principles of international law" refers to norms of general or customary

international law which are binding on all states,17 i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity,18 a person's right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted
principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a primary source
of international law because they have the "character of jus rationale" and are "valid
through all kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966
South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of
international law because they are "basic to legal systems generally" and hence part of the
jus gentium. These principles, he believes, are established by a process of reasoning based on
the common identity of all legal systems. If there should be doubt or disagreement, one must
look to state practice and determine whether the municipal law principle provides a just and
acceptable solution. x x x 21 (Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means "a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris]." (Restatement) This
statement contains the two basic elements of custom: the material factor, that is, how
states behave, and the psychological or subjective factor, that is, why they behave the
way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of
states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency
and the generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do because
they consider it obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is
what makes practice an international rule. Without it, practice is not law.22
(Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic system.23

WHA Resolutions have not been embodied in any local legislation. Have they attained the status
of customary law and should they then be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized agencies allied
with the United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN
Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies of the
WHO,26 and has the power to adopt regulations concerning "advertising and labeling of
biological, pharmaceutical and similar products moving in international commerce,"27 and to
"make recommendations to members with respect to any matter within the competence of the
Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite
different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind member
states thus:

Article 19. The Health Assembly shall have authority to adopt conventions or agreements
with respect to any matter within the competence of the Organization. A two-thirds vote
of the Health Assembly shall be required for the adoption of such conventions or
agreements, which shall come into force for each Member when accepted by it in
accordance with its constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen months after the
adoption by the Health Assembly of a convention or agreement, take action relative to
the acceptance of such convention or agreement. Each Member shall notify the
Director-General of the action taken, and if it does not accept such convention or
agreement within the time limit, it will furnish a statement of the reasons for non-
acceptance. In case of acceptance, each Member agrees to make an annual report to the
Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a)
sanitary and quarantine requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with respect to diseases, causes of
death and public health practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and potency of
biological, pharmaceutical and similar products moving in international commerce; (e)
advertising and labeling of biological, pharmaceutical and similar products moving in
international commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly except
for such Members as may notify the Director-General of rejection or reservations within
the period stated in the notice. (Emphasis supplied)

On the other hand, under Article 23, recommendations of the WHA do not come into force
for members, in the same way that conventions or agreements under Article 19 and regulations
under Article 21 come into force. Article 23 of the WHO Constitution reads:
 Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization.
(Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the recommendation would
come into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are
generally not binding, but they "carry moral and political weight, as they constitute the judgment
on a health issue of the collective membership of the highest international body in the field of
health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution
No. 34.22 states:

"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of

the Constitution, the International Code of Marketing of Breastmilk Substitutes annexed
to the present resolution." (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

In January 1981, the Executive Board of the World Health Organization at its sixty-
seventh session, considered the fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation rather than a
regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the

WHO Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging
member states to implement the ICMBS are merely recommendatory and legally non-binding.
Thus, unlike what has been done with the ICMBS whereby the legislature enacted most of
the provisions into law which is the Milk Code, the subsequent WHA Resolutions,30
specifically providing for exclusive breastfeeding from 0-6 months, continued breastfeeding
up to 24 months, and absolutely prohibiting advertisements and promotions of breastmilk
substitutes, have not been adopted as a domestic law.

It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms,
principles and practices that influence state behavior.31

"Soft law" does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice.32 It is, however, an
expression of non-binding norms, principles, and practices that influence state behavior.33
Certain declarations and resolutions of the UN General Assembly fall under this category.34 The
most notable is the UN Declaration of Human Rights, which this Court has enforced in various
cases, specifically, Government of Hongkong Special Administrative Region v. Olalia,35 Mejoff v.
Director of Prisons,36 Mijares v. Rañada37 and Shangri-la International Hotel Management, Ltd.
v. Developers Group of Companies, Inc..38

The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN
with the mandate to promote and protect intellectual property worldwide, has resorted to soft law
as a rapid means of norm creation, in order "to reflect and respond to the changing needs and
demands of its constituents."39 Other international organizations which have resorted to soft law
include the International Labor Organization and the Food and Agriculture Organization (in the
form of the Codex Alimentarius).40

WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory
Syndrome (SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law binding on WHO
member states, it provides an excellent example of the power of "soft law" in
international relations. International lawyers typically distinguish binding rules of
international law-"hard law"-from non-binding norms, principles, and practices that
influence state behavior-"soft law." WHO has during its existence generated many soft
law norms, creating a "soft law regime" in international governance for public health.

The "soft law" SARS and IHR Resolutions represent significant steps in laying the
political groundwork for improved international cooperation on infectious diseases.
These resolutions clearly define WHO member states' normative duty to cooperate fully
with other countries and with WHO in connection with infectious disease surveillance
and response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic,
the duty is powerful politically for two reasons. First, the SARS outbreak has taught the
lesson that participating in, and enhancing, international cooperation on infectious disease
controls is in a country's self-interest x x x if this warning is heeded, the "soft law" in the
SARS and IHR Resolution could inform the development of general and consistent state
practice on infectious disease surveillance and outbreak response, perhaps crystallizing
eventually into customary international law on infectious disease prevention and
control.41

In the Philippines, the executive department implemented certain measures recommended by

WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No.
201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments
broad powers to close down schools/establishments, conduct health surveillance and monitoring,
and ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state to
implement the IHR Resolution was still considered not binding or enforceable, although said
resolutions had great political influence.

As previously discussed, for an international rule to be considered as customary law, it must be

established that such rule is being followed by states because they consider it obligatory to
comply with such rules (opinio juris). Respondents have not presented any evidence to prove
that the WHA Resolutions, although signed by most of the member states, were in fact enforced
or practiced by at least a majority of the member states; neither have respondents proven that any
compliance by member states with said WHA Resolutions was obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into
domestic law. The provisions of the WHA Resolutions cannot be considered as part of the
law of the land that can be implemented by executive agencies without the need of a law
enacted by the legislature.

Second, the Court will determine whether the DOH may implement the provisions of the WHA
Resolutions by virtue of its powers and functions under the Revised Administrative Code even in
the absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the
DOH shall define the national health policy and implement a national health plan within the
framework of the government's general policies and plans, and issue orders and regulations
concerning the implementation of establishe

Notably, the definition in the RIRR merely merged together under the term "milk company" the
entities defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR
also enumerated in Section 5(w) the products manufactured or distributed by an entity that would
qualify it as a "milk company," whereas in the Milk Code, what is used is the phrase "products
within the scope of this Code." Those are the only differences between the definitions given in
the Milk Code and the definition as re-stated in the RIRR.

Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and
distributors, the Court sees no harm in the RIRR providing for just one term to encompass both
entities. The definition of "milk company" in the RIRR and the definitions of "distributor" and
"manufacturer" provided for under the Milk Code are practically the same.

The Court is not convinced that the definition of "milk company" provided in the RIRR would
bring about any change in the treatment or regulation of "distributors" and "manufacturers" of
breastmilk substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with
the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an
industry which affects public health and welfare and, as such, the rest of the RIRR do not
constitute illegal restraint of trade nor are they violative of the due process clause of the
Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of

Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for
being ultra vires. The Department of Health and respondents are PROHIBITED from
implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of
the provisions of Administrative Order No. 2006-0012 is concerned.

SO ORDERED.

Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona,

Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ.,
concur.

EN BANC

[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B.

ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN.
ANGELO REYES, respondents.

DECISION

KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine
Marines (the Marines) to join the Philippine National Police (the PNP) in visibility patrols
around the metropolis.

In view of the alarming increase in violent crimes in Metro Manila, like robberies,
kidnappings and carnappings, the President, in a verbal directive, ordered the PNP and
the Marines to conduct joint visibility patrols for the purpose of crime prevention and
suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces
of the Philippines (the AFP), the Chief of the PNP and the Secretary of the Interior and
Local Government were tasked to execute and implement the said order. In compliance
with the presidential mandate, the PNP Chief, through Police Chief Superintendent
Edgar B. Aglipay, formulated Letter of Instruction 02/2000xx[1] (the LOI) which detailed
the manner by which the joint visibility patrols, called Task Force Tulungan, would be
conducted.xxi[2] Task Force Tulungan was placed under the leadership of the Police
Chief of Metro Manila.

Subsequently, the President confirmed his previous directive on the deployment of the
Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of
the AFP and the PNP Chief.xxii[3] In the Memorandum, the President expressed his
desire to improve the peace and order situation in Metro Manila through a more
effective crime prevention program including increased police patrols.xxiii[4] The
President further stated that to heighten police visibility in the metropolis, augmentation
from the AFP is necessary.xxiv[5] Invoking his powers as Commander-in-Chief under
Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff
and PNP Chief to coordinate with each other for the proper deployment and utilization of
the Marines to assist the PNP in preventing or suppressing criminal or lawless
violence.xxv[6] Finally, the President declared that the services of the Marines in the anti-
crime campaign are merely temporary in nature and for a reasonable period only, until
such time when the situation shall have improved.xxvi[7]

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:

xxx

2. PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the
Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the
suppression of crime prevention and other serious threats to national security.

3. SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals
but also by organized syndicates whose members include active and former
police/military personnel whose training, skill, discipline and firepower prove well-above
the present capability of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will
reduce the incidence of crimes specially those perpetrated by active or former
police/military personnel.

4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM
visibility patrols to keep Metro Manila streets crime-free, through a sustained street
patrolling to minimize or eradicate all forms of high-profile crimes especially those
perpetrated by organized crime syndicates whose members include those that are well-
trained, disciplined and well-armed active or former PNP/Military personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila
and to preserve the internal security of the state against insurgents and other serious
threat to national security, although the primary responsibility over Internal Security
Operations still rests upon the AFP.

b. The principle of integration of efforts shall be applied to eradicate all forms of high-
profile crimes perpetrated by organized crime syndicates operating in Metro Manila.
This concept requires the military and police to work cohesively and unify efforts to
ensure a focused, effective and holistic approach in addressing crime prevention. Along
this line, the role of the military and police aside from neutralizing crime syndicates is to
bring a wholesome atmosphere wherein delivery of basic services to the people and
development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines
visibility patrols, local Police Units are responsible for the maintenance of peace and
order in their locality.

c. To ensure the effective implementation of this project, a provisional Task Force

TULUNGAN shall be organized to provide the mechanism, structure, and procedures
for the integrated planning, coordinating, monitoring and assessing the security
situation.

xxx.xxvii[8]

The selected areas of deployment under the LOI are: Monumento Circle, North Edsa
(SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial
Center, LRT/MRT Stations and the NAIA and Domestic Airport.xxviii[9]

On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines,
null and void and unconstitutional, arguing that:

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS

VIOLATIVE OF THE CONSTITUTION, IN THAT:

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD

JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW
ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF
ARTICLE II, SECTION 3 OF THE CONSTITUTION;

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE

MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN
DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE

MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.

II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION

IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT
SHOULD REALLY BE UNDER THE CONSTITUTION.xxix[10]

Asserting itself as the official organization of Filipino lawyers tasked with the bounden
duty to uphold the rule of law and the Constitution, the IBP questions the validity of the
deployment and utilization of the Marines to assist the PNP in law enforcement.

Without granting due course to the petition, the Court in a Resolution,xxx[11] dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment.

The Solicitor General vigorously defends the constitutionality of the act of the President
in deploying the Marines, contending, among others, that petitioner has no legal
standing; that the question of deployment of the Marines is not proper for judicial
scrutiny since the same involves a political question; that the organization and conduct
of police visibility patrols, which feature the team-up of one police officer and one
Philippine Marine soldier, does not violate the civilian supremacy clause in the
Constitution.

The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the Presidents factual determination of the necessity of
calling the armed forces is subject to judicial review; and, (3) Whether or not the calling
of the armed forces to assist the PNP in joint visibility patrols violates the constitutional
provisions on civilian supremacy over the military and the civilian character of the PNP.

The petition has no merit.

First, petitioner failed to sufficiently show that it is in possession of the requisites of

standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to
wit:

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 grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.

When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (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.xxxi[12]

The IBP has not sufficiently complied with the requisites of standing in this case.

Legal standing or locus standi has been defined as a personal and substantial interest
in the case such that the party has sustained or will sustain direct injury as a result of
the governmental act that is being challenged.xxxii[13] The term interest means a
material interest, an interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest.xxxiii[14] The gist of the
question of standing is whether a party alleges such personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions.xxxiv[15]

In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration, however, the
IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP
of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. Based on the standards above-stated,
the IBP has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of
Court, is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment of the
Marines. It should also be noted that the interest of the National President of the IBP
who signed the petition, is his alone, absent a formal board resolution authorizing him to
file the present action. To be sure, members of the BAR, those in the judiciary included,
have varying opinions on the issue. Moreover, the IBP, assuming that it has duly
authorized the National President to file the petition, has not shown any specific injury
which it has suffered or may suffer by virtue of the questioned governmental act.
Indeed, none of its members, whom the IBP purportedly represents, has sustained any
form of injury as a result of the operation of the joint visibility patrols. Neither is it alleged
that any of its members has been arrested or that their civil liberties have been violated
by the deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic institutions
and may cause more harm than good in the long run. Not only is the presumed injury
not personal in character, it is likewise too vague, highly speculative and uncertain to
satisfy the requirement of standing. Since petitioner has not successfully established a
direct and personal injury as a consequence of the questioned act, it does not possess
the personality to assail the validity of the deployment of the Marines. This Court,
however, does not categorically rule that the IBP has absolutely no standing to raise
constitutional issues now or in the future. The IBP must, by way of allegations and
proof, satisfy this Court that it has sufficient stake to obtain judicial resolution of the
controversy.

Having stated the foregoing, it must be emphasized that this Court has the discretion to
take cognizance of a suit which does not satisfy the requirement of legal standing when
paramount interest is involved.xxxv[16] In not a few cases, the Court has adopted a
liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an
issue of transcendental significance to the people.xxxvi[17] Thus, when the issues raised
are of paramount importance to the public, the Court may brush aside technicalities of
procedure.xxxvii[18] In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Moreover, because peace and order
are under constant threat and lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal controversy raised in the
petition almost certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now, rather
than later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid
the PNP in visibility patrols. In this regard, the IBP admits that the deployment of the
military personnel falls under the Commander-in-Chief powers of the President as
stated in Section 18, Article VII of the Constitution, specifically, the power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion. What the
IBP questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court review the sufficiency of the factual basis for said troop [Marine]
deployment.xxxviii[19]
The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review
powers of this Court.

As framed by the parties, the underlying issues are the scope of presidential powers
and limits, and the extent of judicial review. But, while this Court gives considerable
weight to the parties formulation of the issues, the resolution of the controversy may
warrant a creative approach that goes beyond the narrow confines of the issues raised.
Thus, while the parties are in agreement that the power exercised by the President is
the power to call out the armed forces, the Court is of the view that the power involved
may be no more than the maintenance of peace and order and promotion of the general
welfare.xxxix[20] For one, the realities on the ground do not show that there exist a state
of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is
not brought upon the citizenry, a point discussed in the latter part of this decision. In the
words of the late Justice Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the Presidents powers as protector
of the peace. [Rossiter, The American Presidency]. The power of the President to keep
the peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its existence.
The President is not only clothed with extraordinary powers in times of emergency, but
is also tasked with attending to the day-to-day problems of maintaining peace and order
and ensuring domestic tranquility in times when no foreign foe appears on the horizon.
Wide discretion, within the bounds of law, in fulfilling presidential duties in times of
peace is not in any way diminished by the relative want of an emergency specified in
the commander-in-chief provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the Presidents exercising
as Commander-in-Chief powers short of the calling of the armed forces, or suspending
the privilege of the writ of habeas corpus or declaring martial law, in order to keep the
peace, and maintain public order and security.

xxxxl[21]

Nonetheless, even if it is conceded that the power involved is the Presidents power to
call out the armed forces to prevent or suppress lawless violence, invasion or rebellion,
the resolution of the controversy will reach a similar result.

We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
not justiciable.

As a general proposition, a controversy is justiciable if it refers to a matter which is

appropriate for court review.xli[22] It pertains to issues which are inherently susceptible
of being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even
in instances that are ripe for resolution. One class of cases wherein the Court hesitates
to rule on are political questions. The reason is that political questions are concerned
with issues dependent upon the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a function of the separation of
powers, the courts will not normally interfere with the workings of another co-equal
branch unless the case shows a clear need for the courts to step in to uphold the law
and the Constitution.

As Taada v. Cuencoxlii[23] puts it, political questions refer to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of government. Thus, if an issue is clearly identified by the text of the
Constitution as matters for discretionary action by a particular branch of government or
to the people themselves then it is held to be a political question. In the classic
formulation of Justice Brennan in Baker v. Carr,xliii[24] [p]rominent on the surface of any
case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a courts undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various departments on the one
question.

The 1987 Constitution expands the concept of judicial review by providing that (T)he
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.xliv[25] Under this definition, the Court cannot agree with the Solicitor
General that the issue involved is a political question beyond the jurisdiction of this
Court to review. When the grant of power is qualified, conditional or subject to
limitations, the issue of whether the prescribed qualifications or conditions have been
met or the limitations respected, is justiciable - the problem being one of legality or
validity, not its wisdom.xlv[26] Moreover, the jurisdiction to delimit constitutional
boundaries has been given to this Court.xlvi[27] When political questions are involved,
the Constitution limits the determination as to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the official
whose action is being questioned.xlvii[28]

By grave abuse of discretion is meant simply capricious or whimsical exercise of

judgment that is patent and gross as to amount to an evasion of 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
or hostility.xlviii[29] Under this definition, a court is without power to directly decide
matters over which full discretionary authority has been delegated. But while this Court
has no power to substitute its judgment for that of Congress or of the President, it may
look into the question of whether such exercise has been made in grave abuse of
discretion.xlix[30] A showing that plenary power is granted either department of
government, may not be an obstacle to judicial inquiry, for the improvident exercise or
abuse thereof may give rise to justiciable controversy.l[31]

When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the Presidents decision is
totally bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the military.
In the performance of this Courts duty of purposeful hesitationli[32] before declaring an
act of another branch as unconstitutional, only where such grave abuse of discretion is
clearly shown shall the Court interfere with the Presidents judgment. To doubt is to
sustain.

There is a clear textual commitment under the Constitution to bestow on the President
full discretionary power to call out the armed forces and to determine the necessity for
the exercise of such power. Section 18, Article VII of the Constitution, which embodies
the powers of the President as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus, or place the Philippines or any part thereof under
martial law.

xxx

The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of
Section 18, Article VII which reads, thus:

xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of
all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.

Under the foregoing provisions, Congress may revoke such proclamation or suspension
and the Court may review the sufficiency of the factual basis thereof. However, there is
no such equivalent provision dealing with the revocation or review of the Presidents
action to call out the armed forces. The distinction places the calling out power in a
different category from the power to declare martial law and the power to suspend the
privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would
have simply lumped together the three powers and provided for their revocation and
review without any qualification. Expressio unius est exclusio alterius. Where the terms
are expressly limited to certain matters, it may not, by interpretation or construction, be
extended to other matters.lii[33] That the intent of the Constitution is exactly what its
letter says, i.e., that the power to call is fully discretionary to the President, is extant in
the deliberation of the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power
of the President as Commander-in-Chief. First, he can call out such Armed Forces as
may be necessary to suppress lawless violence; then he can suspend the privilege of
the writ of habeas corpus, then he can impose martial law. This is a graduated
sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of
the writ of habeas corpus, his judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by the National Assembly. But
when he exercises this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by anybody.

xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the matter can
be handled by the first sentence: The President may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. So we feel that that is
sufficient for handling imminent danger.

MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the
matter can be handled by the First Sentence: The President....may call out such Armed
Forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that
that is sufficient for handling imminent danger, of invasion or rebellion, instead of
imposing martial law or suspending the writ of habeas corpus, he must necessarily have
to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the
idea?

MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review.liii[34]

The reason for the difference in the treatment of the aforementioned powers highlights
the intent to grant the President the widest leeway and broadest discretion in using the
power to call out because it is considered as the lesser and more benign power
compared to the power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power
to suspend the privilege of the writ of habeas corpus or to impose martial law, two
conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public
safety must require it. These conditions are not required in the case of the power to call
out the armed forces. The only criterion is that whenever it becomes necessary, the
President may call the armed forces to prevent or suppress lawless violence, invasion
or rebellion." The implication is that the President is given full discretion and wide
latitude in the exercise of the power to call as compared to the two other powers.

If the petitioner fails, by way of proof, to support the assertion that the President acted
without factual basis, then this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters considered for
satisfying the same is a combination of several factors which are not always accessible
to the courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to verify, or
wholly unavailable to the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the armed forces may be of a
nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence

network to gather information, some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the
military to prevent or suppress lawless violence must be done swiftly and decisively if it
were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other
parts of the country. The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary restraining
order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the Presidents exercise of judgment deserves to be accorded
respect from this Court.

The President has already determined the necessity and factual basis for calling the
armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like
bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro
Manila...liv[35] We do not doubt the veracity of the Presidents assessment of the
situation, especially in the light of present developments. The Court takes judicial notice
of the recent bombings perpetrated by lawless elements in the shopping malls, public
utilities, and other public places. These are among the areas of deployment described in
the LOI 2000. Considering all these facts, we hold that the President has sufficient
factual basis to call for military aid in law enforcement and in the exercise of this
constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor does
it infringe the civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of
the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of
law enforcement is militarized in violation of Section 3, Article IIlv[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of
military assets for civilian law enforcement. The participation of the Marines in the
conduct of joint visibility patrols is appropriately circumscribed. The limited participation
of the Marines is evident in the provisions of the LOI itself, which sufficiently provides
the metes and bounds of the Marines authority. It is noteworthy that the local police
forces are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the
PNP-Philippine Marines joint visibility patrols.lvi[37] Under the LOI, the police forces are
tasked to brief or orient the soldiers on police patrol procedures.lvii[38] It is their
responsibility to direct and manage the deployment of the Marines.lviii[39] It is, likewise,
their duty to provide the necessary equipment to the Marines and render logistical
support to these soldiers.lix[40] In view of the foregoing, it cannot be properly argued that
military authority is supreme over civilian authority. Moreover, the deployment of the
Marines to assist the PNP does not unmake the civilian character of the police force.
Neither does it amount to an insidious incursion of the military in the task of law
enforcement in violation of Section 5(4), Article XVI of the Constitution.lx[41]

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the
AFP, by his alleged involvement in civilian law enforcement, has been virtually
appointed to a civilian post in derogation of the aforecited provision. The real authority in
these operations, as stated in the LOI, is lodged with the head of a civilian institution,
the PNP, and not with the military. Such being the case, it does not matter whether the
AFP Chief actually participates in the Task Force Tulungan since he does not exercise
any authority or control over the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols does not
destroy the civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than assistance
required in conducting the patrols. As such, there can be no insidious incursion of the
military in civilian affairs nor can there be a violation of the civilian supremacy clause in
the Constitution.

It is worth mentioning that military assistance to civilian authorities in various forms

persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse
to requesting the assistance of the military in the implementation and execution of
certain traditionally civil functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has been rendered, exemplifying
the activities that bring both the civilian and the military together in a relationship of
cooperation, are:

1. Elections;lxi[42]

2. Administration of the Philippine National Red Cross;lxii[43]

3. Relief and rescue operations during calamities and disasters;lxiii[44]

4. Amateur sports promotion and development;lxiv[45]

5. Development of the culture and the arts;lxv[46]

6. Conservation of natural resources;lxvi[47]

7. Implementation of the agrarian reform program;lxvii[48]

8. Enforcement of customs laws;lxviii[49]

9. Composite civilian-military law enforcement activities;lxix[50]

10. Conduct of licensure examinations;lxx[51]

11. Conduct of nationwide tests for elementary and high school students; lxxi[52]

12. Anti-drug enforcement activities;lxxii[53]

13. Sanitary inspections;lxxiii[54]

14. Conduct of census work;lxxiv[55]

15. Administration of the Civil Aeronautics Board;lxxv[56]

16. Assistance in installation of weather forecasting devices;lxxvi[57]

17. Peace and order policy formulation in local government units.lxxvii[58]

This unquestionably constitutes a gloss on executive power resulting from a systematic,

unbroken, executive practice, long pursued to the knowledge of Congress and, yet,
never before questioned.lxxviii[59] What we have here is mutual support and cooperation
between the military and civilian authorities, not derogation of civilian supremacy.

In the United States, where a long tradition of suspicion and hostility towards the use of
military force for domestic purposes has persisted,lxxix[60] and whose Constitution,
unlike ours, does not expressly provide for the power to call, the use of military
personnel by civilian law enforcement officers is allowed under circumstances similar to
those surrounding the present deployment of the Philippine Marines. Under the Posse
Comitatus Actlxxx[61] of the US, the use of the military in civilian law enforcement is
generally prohibited, except in certain allowable circumstances. A provision of the Act
states:

1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as
posse comitatus or otherwise to execute the laws shall be fined not more than $10,000
or imprisoned not more than two years, or both.lxxxi[62]

To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courtslxxxii[63] apply the following standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement officers at
Wounded Knee in such a manner that the military personnel subjected the citizens to
the exercise of military power which was regulatory, proscriptive, or compulsorylxxxiii[64]
George Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards for
assessing acceptable involvement of military personnel in civil law enforcement. See likewise HONORED
IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83
Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to mean that
military involvement, even when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or
compels some conduct on the part of those claiming relief. A mere threat of some future
injury would be insufficient. (emphasis supplied)

Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enforcement,
the conclusion is inevitable that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:

3. The designation of tasks in Annex Alxxxiv[65] does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6,lxxxv[66] 8(k)lxxxvi[67] and 9(a)lxxxvii[68] of Annex A. These
soldiers, second, also have no power to prohibit or condemn. In No. 9(d)lxxxviii[69] of Annex A, all
arrested persons are brought to the nearest police stations for proper disposition. And last, these
soldiers apply no coercive force. The materials or equipment issued to them, as shown in No.
8(c)lxxxix[70] of Annex A, are all low impact and defensive in character. The conclusion is that there
being no exercise of regulatory, proscriptive or compulsory military power, the deployment of a
handful of Philippine Marines constitutes no impermissible use of military power for civilian law
enforcement.xc[71]

It appears that the present petition is anchored on fear that once the armed forces are
deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed
forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which
it has not, that in the deployment of the Marines, the President has violated the
fundamental law, exceeded his authority or jeopardized the civil liberties of the people,
this Court is not inclined to overrule the Presidents determination of the factual basis for
the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a
single citizen has complained that his political or civil rights have been violated as a
result of the deployment of the Marines. It was precisely to safeguard peace, tranquility
and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in
the streets, not when the shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and
De Leon, Jr., JJ., concur.

Bellosillo, J., on official leave.

Puno, J., see separate opinion.

Vitug, J., see separate opinion.

Mendoza, J., see concurring and dissenting opinion.

Panganiban, J., in the result.

Quisumbing, J., joins the opinion of J. Mendoza.

 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 204819 April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor
children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD
DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government,
Respondents.

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

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S.
Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante,
Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio Racho &
Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for themselves
and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo Jose C.
Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C.
Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf of
their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato C.
Castor & Mildred C. Castor for themselves and on behalf of their minor children, Renz Jeffrey
C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses Alexander
R. Racho & Zara Z. Racho for themselves and on behalf of their minor children Margarita
Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses Alfred R. Racho
& Francine V. Racho for themselves and on behalf of their minor children Michael Racho,
Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura Racho, Spouses David R.
Racho & Armilyn A. Racho for themselves and on behalf of their minor child Gabriel Racho,
Mindy M. Juatas and on behalf of her minor children Elijah Gerald Juatas and Elian Gabriel
Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture
and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-
General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION, represented
by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES,
represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES,
represented by its President Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES OF THE
PHILIPPINES, represented by its President Donato Marcos, Respondents.

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

G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 204988

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as
President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G.
NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON.
PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Health; HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT,
HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL,
Respondents.

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

G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES,

Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY
FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A.
LUISTRO, Respondents.

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

G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National

President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan,
Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno
and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J.
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. ARSENIO
BALISACAN, Director-General, National Economic and Development Authority, HON. SUZETTE
H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF DIRECTORS,
Philippine Health Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine
Commission on Women, Respondents.

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

G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND
JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY
PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE
NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as Filipinos For Life,
Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of
the Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education;
and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local
Government, Respondents.

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

G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.

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

G.R. No. 205720

PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive

Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON.
PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUEL A.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

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

G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-
GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH,
DEPARTMENT OF EDUCATION, Respondents.

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

G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH

MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local Government,
Respondents.

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

G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND
FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR.
and DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government,
Respondents.

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

G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the
Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget
and Management, Respondents.

DECISION

MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And
this Court has consistently affirmed this preferred status, well aware that it is "designed to
protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs , and to live as he believes he ought to live, consistent
with the liberty of others and with the common good."1

To this day, poverty is still a major stumbling block to the nation's emergence as a developed
country, leaving our people beleaguered in a state of hunger, illiteracy and unemployment.
While governmental policies have been geared towards the revitalization of the economy, the
bludgeoning dearth in social services remains to be a problem that concerns not only the poor,
but every member of society. The government continues to tread on a trying path to the
realization of its very purpose, that is, the general welfare of the Filipino people and the
development of the country as a whole. The legislative branch, as the main facet of a
representative government, endeavors to enact laws and policies that aim to remedy looming
societal woes, while the executive is closed set to fully implement these measures and bring
concrete and substantial solutions within the reach of Juan dela Cruz. Seemingly distant is the
judicial branch, oftentimes regarded as an inert governmental body that merely casts its
watchful eyes on clashing stakeholders until it is called upon to adjudicate. Passive, yet reflexive
when called into action, the Judiciary then willingly embarks on its solemn duty to interpret
legislation vis-a-vis the most vital and enduring principle that holds Philippine society together -
the supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of population growth
control, abortion and contraception. As in every democratic society, diametrically opposed
views on the subjects and their perceived consequences freely circulate in various media. From
television debates2 to sticker campaigns,3 from rallies by socio-political activists to mass
gatherings organized by members of the clergy4 - the clash between the seemingly antithetical
ideologies of the religious conservatives and progressive liberals has caused a deep division in
every level of the society. Despite calls to withhold support thereto, however, Republic Act
(R.A.) No. 10354, otherwise known as the Responsible Parenthood and Reproductive Health Act
of 2012 (RH Law), was enacted by Congress on December 21, 2012.

Shortly after the President placed his imprimatur on the said law, challengers from various
sectors of society came knocking on the doors of the Court, beckoning it to wield the sword
that strikes down constitutional disobedience. Aware of the profound and lasting impact that
its decision may produce, the Court now faces the iuris controversy, as presented in fourteen
(14) petitions and two (2) petitions- in-intervention, to wit:

(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and
Lovely Ann C. Imbong, in their personal capacities as citizens, lawyers and taxpayers and
on behalf of their minor children; and the Magnificat Child Leaming Center, Inc., a
domestic, privately-owned educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines,
Inc., through its president, Atty. Maria Concepcion S. Noche7 and several others8 in
their personal capacities as citizens and on behalf of the generations unborn (ALFI);

(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and
Valeriano S. Avila, in their capacities as citizens and taxpayers (Task Force Family);

(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City,
Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned educational
institution, and several others,13 in their capacities as citizens (Serve Life);

(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);

(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic
Xybrspace Apostolate of the Philippines,16 in their capacities as a citizens and taxpayers
(Olaguer);

(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of
Xseminarians Inc.,18 and several others19 in their capacities as citizens and taxpayers
(PAX);

(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their
capacities as citizens and taxpayers (Echavez);

(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny
C. Tatad and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf
of those yet unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a member
of the Bar (Tatad);

(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation
Inc.24 and several others,25 in their capacities as citizens and taxpayers and on behalf of
its associates who are members of the Bar (Pro-Life);

(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys.
Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in
their capacities as citizens, taxpayers and members of the Bar (MSF);

(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several
others,29 in their capacities as citizens (Juat) ;

(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc.
and several others,31 in their capacities as citizens (CFC);
 (14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim
in their capacities as citizens and taxpayers (Tillah); and

(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a

citizen and a taxpayer (Alcantara); and

(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an

accredited political party.

A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality
of RH Law on the following GROUNDS:

• The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the RH Law
would authorize the purchase of hormonal contraceptives, intra-uterine devices and
injectables which are abortives, in violation of Section 12, Article II of the Constitution
which guarantees protection of both the life of the mother and the life of the unborn
from conception.35

• The RH Law violates the right to health and the right to protection against hazardous
products. The petitioners posit that the RH Law provides universal access to
contraceptives which are hazardous to one's health, as it causes cancer and other health
problems.36

• The RH Law violates the right to religious freedom. The petitioners contend that the
RH Law violates the constitutional guarantee respecting religion as it authorizes the use
of public funds for the procurement of contraceptives. For the petitioners, the use of
public funds for purposes that are believed to be contrary to their beliefs is included in
the constitutional mandate ensuring religious freedom.37

It is also contended that the RH Law threatens conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it compels medical practitioners 1] to refer
patients who seek advice on reproductive health programs to other doctors; and 2] to provide
full and correct information on reproductive health programs and service, although it is against
their religious beliefs and convictions.38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-
IRR),39 provides that skilled health professionals who are public officers such as, but not limited
to, Provincial, City, or Municipal Health Officers, medical officers, medical specialists, rural
health physicians, hospital staff nurses, public health nurses, or rural health midwives, who are
specifically charged with the duty to implement these Rules, cannot be considered as
conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex education in
schools should not be allowed as it is an affront to their religious beliefs.41

While the petit10ners recognize that the guarantee of religious freedom is not absolute, they
argue that the RH Law fails to satisfy the "clear and present danger test" and the "compelling
state interest test" to justify the regulation of the right to free exercise of religion and the right
to free speech.42

• The RH Law violates the constitutional provision on involuntary servitude. According

to the petitioners, the RH Law subjects medical practitioners to involuntary servitude
because, to be accredited under the PhilHealth program, they are compelled to provide
forty-eight (48) hours of pro bona services for indigent women, under threat of criminal
prosecution, imprisonment and other forms of punishment.43

The petitioners explain that since a majority of patients are covered by PhilHealth, a medical
practitioner would effectively be forced to render reproductive health services since the lack of
PhilHealth accreditation would mean that the majority of the public would no longer be able to
avail of the practitioners services.44

• The RH Law violates the right to equal protection of the law. It is claimed that the RH
Law discriminates against the poor as it makes them the primary target of the
government program that promotes contraceptive use. The petitioners argue that,
rather than promoting reproductive health among the poor, the RH Law seeks to
introduce contraceptives that would effectively reduce the number of the poor.45

• The RH Law is "void-for-vagueness" in violation of the due process clause of the

Constitution. In imposing the penalty of imprisonment and/or fine for "any violation," it
is vague because it does not define the type of conduct to be treated as "violation" of
the RH Law.46

In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process
by removing from them (the people) the right to manage their own affairs and to decide what
kind of health facility they shall be and what kind of services they shall offer."47 It ignores the
management prerogative inherent in corporations for employers to conduct their affairs in
accordance with their own discretion and judgment.

• The RH Law violates the right to free speech. To compel a person to explain a full
range of family planning methods is plainly to curtail his right to expound only his own
preferred way of family planning. The petitioners note that although exemption is
granted to institutions owned and operated by religious groups, they are still forced to
refer their patients to another healthcare facility willing to perform the service or
procedure.48
 • The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution. It is contended that the RH Law providing for mandatory reproductive
health education intrudes upon their constitutional right to raise their children in
accordance with their beliefs.49

It is claimed that, by giving absolute authority to the person who will undergo reproductive
health procedure, the RH Law forsakes any real dialogue between the spouses and impedes the
right of spouses to mutually decide on matters pertaining to the overall well-being of their
family. In the same breath, it is also claimed that the parents of a child who has suffered a
miscarriage are deprived of parental authority to determine whether their child should use
contraceptives.50

• The RH Law violates the constitutional principle of non-delegation of legislative

authority. The petitioners question the delegation by Congress to the FDA of the power
to determine whether a product is non-abortifacient and to be included in the
Emergency Drugs List (EDL).51

• The RH Law violates the one subject/one bill rule provision under Section 26( 1 ),
Article VI of the Constitution.52

• The RH Law violates Natural Law.53

• The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and
the Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law,
providing for reproductive health measures at the local government level and the
ARMM, infringes upon the powers devolved to LGUs and the ARMM under the Local
Government Code and R.A . No. 9054.54

Various parties also sought and were granted leave to file their respective comments-in-
intervention in defense of the constitutionality of the RH Law. Aside from the Office of the
Solicitor General (OSG) which commented on the petitions in behalf of the respondents,55
Congressman Edcel C. Lagman,56 former officials of the Department of Health Dr. Esperanza I.
Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for
Reproductive Health (C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60
also filed their respective Comments-in-Intervention in conjunction with several others. On
June 4, 2013, Senator Pia Juliana S. Cayetano was also granted leave to intervene.61

The respondents, aside from traversing the substantive arguments of the petitioners, pray for
the dismissal of the petitions for the principal reasons that 1] there is no actual case or
controversy and, therefore, the issues are not yet ripe for judicial determination.; 2] some
petitioners lack standing to question the RH Law; and 3] the petitions are essentially petitions
for declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took
effect.

On March 19, 2013, after considering the issues and arguments raised, the Court issued the
Status Quo Ante Order (SQAO), enjoining the effects and implementation of the assailed
legislation for a period of one hundred and twenty (120) days, or until July 17, 2013.62

On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to
determine and/or identify the pertinent issues raised by the parties and the sequence by which
these issues were to be discussed in the oral arguments. On July 9 and 23, 2013, and on August
6, 13, and 27, 2013, the cases were heard on oral argument. On July 16, 2013, the SQAO was
ordered extended until further orders of the Court.63

Thereafter, the Court directed the parties to submit their respective memoranda within sixty
(60) days and, at the same time posed several questions for their clarification on some
contentions of the parties.64

The Status Quo Ante

(Population, Contraceptive and Reproductive Health Laws

Prior to the RH Law

Long before the incipience of the RH Law, the country has allowed the sale, dispensation and
distribution of contraceptive drugs and devices. As far back as June 18, 1966, the country
enacted R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution
of Contraceptive Drugs and Devices." Although contraceptive drugs and devices were allowed,
they could not be sold, dispensed or distributed "unless such sale, dispensation and distribution
is by a duly licensed drug store or pharmaceutical company and with the prescription of a
qualified medical practitioner."65

In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to
"dispensing of abortifacients or anti-conceptional substances and devices." Under Section 37
thereof, it was provided that "no drug or chemical product or device capable of provoking
abortion or preventing conception as classified by the Food and Drug Administration shall be
delivered or sold to any person without a proper prescription by a duly licensed physician."

On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which
recognized that the population problem should be considered as the principal element for long-
term economic development, enacted measures that promoted male vasectomy and tubal
ligation to mitigate population growth.67 Among these measures included R.A. No. 6365,
approved on August 16, 1971, entitled "An Act Establishing a National Policy on Population,
Creating the Commission on Population and for Other Purposes. " The law envisioned that
"family planning will be made part of a broad educational program; safe and effective means
will be provided to couples desiring to space or limit family size; mortality and morbidity rates
will be further reduced."

To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential
Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family planning
a part of a broad educational program," provided "family planning services as a part of over-all
health care," and made "available all acceptable methods of contraception, except abortion, to
all Filipino citizens desirous of spacing, limiting or preventing pregnancies."

Through the years, however, the use of contraceptives and family planning methods evolved
from being a component of demographic management, to one centered on the promotion of
public health, particularly, reproductive health.69 Under that policy, the country gave priority
to one's right to freely choose the method of family planning to be adopted, in conformity with
its adherence to the commitments made in the International Conference on Population and
Development.70 Thus, on August 14, 2009, the country enacted R.A. No. 9710 or "The Magna
Carta for Women, " which, among others, mandated the State to provide for comprehensive
health services and programs for women, including family planning and sex education.71

The RH Law

Despite the foregoing legislative measures, the population of the country kept on galloping at
an uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the
population of the country reached over 76 million in the year 2000 and over 92 million in
2010.72 The executive and the legislative, thus, felt that the measures were still not adequate.
To rein in the problem, the RH Law was enacted to provide Filipinos, especially the poor and the
marginalized, access and information to the full range of modem family planning methods, and
to ensure that its objective to provide for the peoples' right to reproductive health be achieved.
To make it more effective, the RH Law made it mandatory for health providers to provide
information on the full range of modem family planning methods, supplies and services, and for
schools to provide reproductive health education. To put teeth to it, the RH Law criminalizes
certain acts of refusals to carry out its mandates.

Stated differently, the RH Law is an enhancement measure to fortify and make effective the
current laws on contraception, women's health and population control.

Prayer of the Petitioners - Maintain the Status Quo

The petitioners are one in praying that the entire RH Law be declared unconstitutional.
Petitioner ALFI, in particular, argues that the government sponsored contraception program,
the very essence of the RH Law, violates the right to health of women and the sanctity of life,
which the State is mandated to protect and promote. Thus, ALFI prays that "the status quo ante
- the situation prior to the passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As
provided under Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of
contraceptives are prohibited unless dispensed by a prescription duly licensed by a physician.
What the Petitioners find deplorable and repugnant under the RH Law is the role that the State
and its agencies - the entire bureaucracy, from the cabinet secretaries down to the barangay
officials in the remotest areas of the country - is made to play in the implementation of the
contraception program to the fullest extent possible using taxpayers' money. The State then
will be the funder and provider of all forms of family planning methods and the implementer of
the program by ensuring the widespread dissemination of, and universal access to, a full range
of family planning methods, devices and supplies.74

ISSUES

After a scrutiny of the various arguments and contentions of the parties, the Court has
synthesized and refined them to the following principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the
controversy.

1] Power of Judicial Review

2] Actual Case or Controversy

3] Facial Challenge

4] Locus Standi

5] Declaratory Relief

6] One Subject/One Title Rule

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life

2] Right to Health

3] Freedom of Religion and the Right to Free Speech

4] The Family

5] Freedom of Expression and Academic Freedom

6] Due Process
 7] Equal Protection

8] Involuntary Servitude

9] Delegation of Authority to the FDA

10] Autonomy of Local Govemments/ARMM

DISCUSSION

Before delving into the constitutionality of the RH Law and its implementing rules, it behooves
the Court to resolve some procedural impediments.

I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the
controversy.

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should
submit to the legislative and political wisdom of Congress and respect the compromises made
in the crafting of the RH Law, it being "a product of a majoritarian democratic process"75 and
"characterized by an inordinate amount of transparency."76 The OSG posits that the authority
of the Court to review social legislation like the RH Law by certiorari is "weak," since the
Constitution vests the discretion to implement the constitutional policies and positive norms
with the political departments, in particular, with Congress.77 It further asserts that in view of
the Court's ruling in Southern Hemisphere v. Anti-Terrorism Council,78 the remedies of
certiorari and prohibition utilized by the petitioners are improper to assail the validity of the
acts of the legislature.79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering
that the assailed law has yet to be enforced and applied to the petitioners, and that the
government has yet to distribute reproductive health devices that are abortive. It claims that
the RH Law cannot be challenged "on its face" as it is not a speech-regulating measure.80

In many cases involving the determination of the constitutionality of the actions of the
Executive and the Legislature, it is often sought that the Court temper its exercise of judicial
power and accord due respect to the wisdom of its co-equal branch on the basis of the principle
of separation of powers. To be clear, the separation of powers is a fundamental principle in our
system of government, which obtains not through express provision but by actual division in
our Constitution. Each department of the government has exclusive cognizance of matters
within its jurisdiction and is supreme within its own sphere.81

Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the
Congress of the Philippines;82 (b) the executive power shall be vested in the President of the
Philippines;83 and (c) the judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.84 The Constitution has truly blocked out with deft
strokes and in bold lines, the allotment of powers among the three branches of government.85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of
powers which imposes upon the courts proper restraint, born of the nature of their functions
and of their respect for the other branches of government, in striking down the acts of the
Executive or the Legislature as unconstitutional. Verily, the policy is a harmonious blend of
courtesy and caution.86

It has also long been observed, however, that in times of social disquietude or political
instability, the great landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated.87 In order to address this, the Constitution impresses upon the Court to
respect the acts performed by a co-equal branch done within its sphere of competence and
authority, but at the same time, allows it to cross the line of separation - but only at a very
limited and specific point - to determine whether the acts of the executive and the legislative
branches are null because they were undertaken with grave abuse of discretion.88 Thus, while
the Court may not pass upon questions of wisdom, justice or expediency of the RH Law, it may
do so where an attendant unconstitutionality or grave abuse of discretion results.89 The Court
must demonstrate its unflinching commitment to protect those cherished rights and principles
embodied in the Constitution.

In this connection, it bears adding that while the scope of judicial power of review may be
limited, the Constitution makes no distinction as to the kind of legislation that may be subject
to judicial scrutiny, be it in the form of social legislation or otherwise. The reason is simple and
goes back to the earlier point. The Court may pass upon the constitutionality of acts of the
legislative and the executive branches, since its duty is not to review their collective wisdom
but, rather, to make sure that they have acted in consonance with their respective authorities
and rights as mandated of them by the Constitution. If after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of proscribing the actions
under review.90 This is in line with Article VIII, Section 1 of the Constitution which expressly
provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government. [Emphases supplied]

As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari,
prohibition and mandamus are appropriate remedies to raise constitutional issues and to
review and/or prohibit/nullify, when proper, acts of legislative and executive officials, as there
is no other plain, speedy or adequate remedy in the ordinary course of law. This ruling was later
on applied in Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and
countless others. In Tanada, the Court wrote:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is
judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld. " Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant case), it becomes a legal
issue which the Court is bound by constitutional mandate to decide. [Emphasis supplied]

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition
and maintenance of the boundaries of authority and control between them. To him, judicial
review is the chief, indeed the only, medium of participation - or instrument of intervention - of
the judiciary in that balancing operation.95

Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled
authority to rule on just any and every claim of constitutional violation. Jurisprudence is replete
with the rule that the power of judicial review is limited by four exacting requisites, viz : (a)
there must be an actual case or controversy; (b) the petitioners must possess locus standi; (c)
the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.96

Actual Case or Controversy

Proponents of the RH Law submit that the subj ect petitions do not present any actual case or
controversy because the RH Law has yet to be implemented.97 They claim that the questions
raised by the petitions are not yet concrete and ripe for adjudication since no one has been
charged with violating any of its provisions and that there is no showing that any of the
petitioners' rights has been adversely affected by its operation.98 In short, it is contended that
judicial review of the RH Law is premature.

An actual case or controversy means an existing case or controversy that is appropriate or ripe
for determination, not conjectural or anticipatory, lest the decision of the court would amount
to an advisory opinion.99 The rule is that courts do not sit to adjudicate mere academic
questions to satisfy scholarly interest, however intellectually challenging. The controversy must
be justiciable-definite and concrete, touching on the legal relations of parties having adverse
legal interests. In other words, the pleadings must show an active antagonistic assertion of a
legal right, on the one hand, and a denial thereof, on the other; that is, it must concern a real,
tangible and not merely a theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state of
facts.100

Corollary to the requirement of an actual case or controversy is the requirement of

ripeness.101 A question is ripe for adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. For a case to be considered ripe for adjudication,
it is a prerequisite that something has then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must allege the existence of an
immediate or threatened injury to himself as a result of the challenged action. He must show
that he has sustained or is immediately in danger of sustaining some direct injury as a result of
the act complained of102

In The Province of North Cotabato v. The Government of the Republic of the Philippines,103
where the constitutionality of an unimplemented Memorandum of Agreement on the Ancestral
Domain (MOA-AD) was put in question, it was argued that the Court has no authority to pass
upon the issues raised as there was yet no concrete act performed that could possibly violate
the petitioners' and the intervenors' rights. Citing precedents, the Court ruled that the fact of
the law or act in question being not yet effective does not negate ripeness. Concrete acts under
a law are not necessary to render the controversy ripe. Even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty.

In this case, the Court is of the view that an actual case or controversy exists and that the same
is ripe for judicial determination. Considering that the RH Law and its implementing rules have
already taken effect and that budgetary measures to carry out the law have already been
passed, it is evident that the subject petitions present a justiciable controversy. As stated
earlier, when an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to settle the
dispute.104

Moreover, the petitioners have shown that the case is so because medical practitioners or
medical providers are in danger of being criminally prosecuted under the RH Law for vague
violations thereof, particularly public health officers who are threatened to be dismissed from
the service with forfeiture of retirement and other benefits. They must, at least, be heard on
the matter NOW.

Facial Challenge

The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged "on its face" as it is not a speech regulating
measure.105

The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment.106 These include religious freedom,
freedom of the press, and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances.107 After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are but component rights of the right to
one's freedom of expression, as they are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been generally
maintained, albeit with some modifications. While this Court has withheld the application of
facial challenges to strictly penal statues,108 it has expanded its scope to cover statutes not
only regulating free speech, but also those involving religious freedom, and other fundamental
rights.109 The underlying reason for this modification is simple. For unlike its counterpart in the
U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only
to settle actual controversies involving rights which are legally demandable and enforceable,
but also to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.110 Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever
vigilant with its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed legislation, the Court has authority to take
cognizance of these kindred petitions and to determine if the RH Law can indeed pass
constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist no
actual case or controversy, would diminish this Court as a reactive branch of government,
acting only when the Fundamental Law has been transgressed, to the detriment of the Filipino
people.

Locus Standi

The OSG also attacks the legal personality of the petitioners to file their respective petitions. It
contends that the "as applied challenge" lodged by the petitioners cannot prosper as the
assailed law has yet to be enforced and applied against them,111 and the government has yet
to distribute reproductive health devices that are abortive.112

The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and
their status as citizens and taxpayers in establishing the requisite locus standi.

Locus standi or legal standing is defined as a personal and substantial interest in a case such
that the party has sustained or will sustain direct injury as a result of the challenged
governmental act.113 It requires a personal stake in the outcome of the controversy as to
assure the concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge
the constitutionality of a statute only if he asserts a violation of his own rights. The rule
prohibits one from challenging the constitutionality of the statute grounded on a violation of
the rights of third persons not before the court. This rule is also known as the prohibition
against third-party standing.115

Transcendental Importance

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of
procedure, hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers,
and legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overreaching significance to society, or of paramount public
interest."116

In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirement may
be relaxed and a suit may be allowed to prosper even where there is no direct injury to the
party claiming the right of judicial review. In the first Emergency Powers Cases,118 ordinary
citizens and taxpayers were allowed to question the constitutionality of several executive
orders although they had only an indirect and general interest shared in common with the
public.

With these said, even if the constitutionality of the RH Law may not be assailed through an "as-
applied challenge, still, the Court has time and again acted liberally on the locus s tandi
requirement. It has accorded certain individuals standing to sue, not otherwise directly injured
or with material interest affected by a Government act, provided a constitutional issue of
transcendental importance is invoked. The rule on locus standi is, after all, a procedural
technicality which the Court has, on more than one occasion, waived or relaxed, thus allowing
non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in
the public interest, albeit they may not have been directly injured by the operation of a law or
any other government act. As held in Jaworski v. PAGCOR:119

Granting arguendo that the present action cannot be properly treated as a petition for
prohibition, the transcendental importance of the issues involved in this case warrants that we
set aside the technical defects and take primary jurisdiction over the petition at bar. One
cannot deny that the issues raised herein have potentially pervasive influence on the social and
moral well being of this nation, specially the youth; hence, their proper and just determination
is an imperative need. This is in accordance with the well-entrenched principle that rules of
procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the
administration of justice. Their strict and rigid application, which would result in technicalities
that tend to frustrate, rather than promote substantial justice, must always be eschewed.
(Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to
the bench and bar, the issues raised must be resolved for the guidance of all. After all, the RH
Law drastically affects the constitutional provisions on the right to life and health, the freedom
of religion and expression and other constitutional rights. Mindful of all these and the fact that
the issues of contraception and reproductive health have already caused deep division among a
broad spectrum of society, the Court entertains no doubt that the petitions raise issues of
transcendental importance warranting immediate court adjudication. More importantly,
considering that it is the right to life of the mother and the unborn which is primarily at issue,
the Court need not wait for a life to be taken away before taking action.

The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined
in the Constitution are being imperilled to be violated. To do so, when the life of either the
mother or her child is at stake, would lead to irreparable consequences.

Declaratory Relief

The respondents also assail the petitions because they are essentially petitions for declaratory
relief over which the Court has no original jurisdiction.120 Suffice it to state that most of the
petitions are praying for injunctive reliefs and so the Court would just consider them as
petitions for prohibition under Rule 65, over which it has original jurisdiction. Where the case
has far-reaching implications and prays for injunctive reliefs, the Court may consider them as
petitions for prohibition under Rule 65.121

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it violates
Section 26(1 ), Article VI of the Constitution,122 prescribing the one subject-one title rule.
According to them, being one for reproductive health with responsible parenthood, the assailed
legislation violates the constitutional standards of due process by concealing its true intent - to
act as a population control measure.123

To belittle the challenge, the respondents insist that the RH Law is not a birth or population
control measure,124 and that the concepts of "responsible parenthood" and "reproductive
health" are both interrelated as they are inseparable.125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally
a population control measure. The corpus of the RH Law is geared towards the reduction of the
country's population. While it claims to save lives and keep our women and children healthy, it
also promotes pregnancy-preventing products. As stated earlier, the RH Law emphasizes the
need to provide Filipinos, especially the poor and the marginalized, with access to information
on the full range of modem family planning products and methods. These family planning
methods, natural or modem, however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of
births in the country.

It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as
well. A large portion of the law, however, covers the dissemination of information and
provisions on access to medically-safe, non-abortifacient, effective, legal, affordable, and
quality reproductive health care services, methods, devices, and supplies, which are all
intended to prevent pregnancy.

The Court, thus, agrees with the petitioners' contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the
provisions that refer to contraception or are related to it and the RH Law loses its very
foundation.127 As earlier explained, "the other positive provisions such as skilled birth
attendance, maternal care including pre-and post-natal services, prevention and management
of reproductive tract infections including HIV/AIDS are already provided for in the Magna Carta
for Women."128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E.
Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was
written:

It is well-settled that the "one title-one subject" rule does not require the Congress to employ
in the title of the enactment language of such precision as to mirror, fully index or catalogue all
the contents and the minute details therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object which the statute seeks to effect, and
where, as here, the persons interested are informed of the nature, scope and consequences of
the proposed law and its operation. Moreover, this Court has invariably adopted a liberal rather
than technical construction of the rule "so as not to cripple or impede legislation." [Emphases
supplied]

In this case, a textual analysis of the various provisions of the law shows that both
"reproductive health" and "responsible parenthood" are interrelated and germane to the
overriding objective to control the population growth. As expressed in the first paragraph of
Section 2 of the RH Law:

SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of these rights, the right to
sustainable human development, the right to health which includes reproductive health, the
right to education and information, and the right to choose and make decisions for themselves
in accordance with their religious convictions, ethics, cultural beliefs, and the demands of
responsible parenthood.

The one subject/one title rule expresses the principle that the title of a law must not be "so
uncertain that the average person reading it would not be informed of the purpose of the
enactment or put on inquiry as to its contents, or which is misleading, either in referring to or
indicating one subject where another or different one is really embraced in the act, or in
omitting any expression or indication of the real subject or scope of the act."129

Considering the close intimacy between "reproductive health" and "responsible parenthood"
which bears to the attainment of the goal of achieving "sustainable human development" as
stated under its terms, the Court finds no reason to believe that Congress intentionally sought
to deceive the public as to the contents of the assailed legislation.

II - SUBSTANTIVE ISSUES:

1-The Right to Life

Position of the Petitioners

The petitioners assail the RH Law because it violates the right to life and health of the unborn
child under Section 12, Article II of the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.130

According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the
RH Law considers contraceptives that prevent the fertilized ovum to reach and be implanted in
the mother's womb as an abortifacient; thus, sanctioning contraceptives that take effect after
fertilization and prior to implantation, contrary to the intent of the Framers of the Constitution
to afford protection to the fertilized ovum which already has life.

They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and
effective family planning products and supplies, medical research shows that contraceptives
use results in abortion as they operate to kill the fertilized ovum which already has life.131

As it opposes the initiation of life, which is a fundamental human good, the petitioners assert
that the State sanction of contraceptive use contravenes natural law and is an affront to the
dignity of man.132

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug
Administration (FDA) to certify that the product or supply is not to be used as an abortifacient,
the assailed legislation effectively confirms that abortifacients are not prohibited. Also
considering that the FDA is not the agency that will actually supervise or administer the use of
these products and supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133

Position of the Respondents

For their part, the defenders of the RH Law point out that the intent of the Framers of the
Constitution was simply the prohibition of abortion. They contend that the RH Law does not
violate the Constitution since the said law emphasizes that only "non-abortifacient"
reproductive health care services, methods, devices products and supplies shall be made
accessible to the public.134

According to the OSG, Congress has made a legislative determination that contraceptives are
not abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration
to various studies and consultations with the World Health Organization (WHO) and other
experts in the medical field, it is asserted that the Court afford deference and respect to such a
determination and pass judgment only when a particular drug or device is later on determined
as an abortive.135

For his part, respondent Lagman argues that the constitutional protection of one's right to life is
not violated considering that various studies of the WHO show that life begins from the
implantation of the fertilized ovum. Consequently, he argues that the RH Law is constitutional
since the law specifically provides that only contraceptives that do not prevent the implantation
of the fertilized ovum are allowed.136

The Court's Position

Local autonomy

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 187298 July 03, 2012

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN AWADI, and
SPO1 SATTAL H. JADJULI, Petitioners,
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO SABAN, COL.
EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT. BIENVENIDO G. LATAG, in
their capacity as officers of the Phil. Marines and Phil. National Police, respectively,
Respondents.

DECISION

SERENO, J.:
On 15 January 2009, three members from the International Committee of the Red Cross (ICRC)
were kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu.1 Andres Notter, a Swiss
national and head of the ICRC in Zamboanga City, Eugenio Vagni, an Italian national and ICRC
delegate, and Marie Jean Lacaba, a Filipino engineer, were purportedly inspecting a water and
sanitation project for the Sulu Provincial Jail when inspecting a water and sanitation project for
the Sulu Provincial Jail when they were seized by three armed men who were later confirmed
to be members of the Abu Sayyaf Group (ASG).2 The leader of the alleged kidnappers was
identified as Raden Abu, a former guard at the Sulu Provincial Jail. News reports linked Abu to
Albader Parad, one of the known leaders of the Abu Sayyaf.

On 21 January 2009, a task force was created by the ICRC and the Philippine National Police
(PNP), which then organized a parallel local group known as the Local Crisis Committee.3 The
local group, later renamed Sulu Crisis Management Committee, convened under the leadership
of respondent Abdusakur Mahail Tan, the Provincial Governor of Sulu. Its armed forces
component was headed by respondents General Juancho Saban, and his deputy, Colonel
Eugenio Clemen. The PNP component was headed by respondent Police Superintendent
Bienvenido G. Latag, the Police Deputy Director for Operations of the Autonomous Region of
Muslim Mindanao (ARMM).4

Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male civilians
coming from different municipalities, who were redeployed to surrounding areas of Patikul.5
The organization of the CEF was embodied in a "Memorandum of Understanding"6 entered
into

between three parties: the provincial government of Sulu, represented by Governor Tan; the
Armed Forces of the Philippines, represented by Gen. Saban; and the Philippine National Police,
represented by P/SUPT. Latag. The Whereas clauses of the Memorandum alluded to the
extraordinary situation in Sulu, and the willingness of civilian supporters of the municipal
mayors to offer their services in order that "the early and safe rescue of the hostages may be
achieved."7

This Memorandum, which was labeled ‘secret’ on its all pages, also outlined the responsibilities
of each of the party signatories, as follows:

Responsibilities of the Provincial Government:

1) The Provincial Government shall source the funds and logistics needed for the
activation of the CEF;

2) The Provincial Government shall identify the Local Government Units which shall
participate in the operations and to propose them for the approval of the parties to this
agreement;
 3) The Provincial Government shall ensure that there will be no unilateral action(s) by
the CEF without the knowledge and approval by both parties.

Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):

1) The AFP/PNP shall remain the authority as prescribed by law in military operations
and law enforcement;

2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance of
their assigned task(s);

3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of
operation(s);

4) The AFP/PNP shall provide the necessary support and/or assistance as called for in
the course of operation(s)/movements of the CEF.8

Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local Government,
announced to the media that government troops had cornered some one hundred and twenty
(120) Abu Sayyaf members along with the three (3) hostages.9 However, the ASG made

contact with the authorities and demanded that the military pull its troops back from the jungle
area.10 The government troops yielded and went back to their barracks; the Philippine Marines
withdrew to their camp, while police and civilian forces pulled back from the terrorists’
stronghold by ten (10) to fifteen (15) kilometers. Threatening that one of the hostages will be
beheaded, the ASG further demanded the evacuation of the military camps and bases in the
different barangays in Jolo.11 The authorities were given no later than 2:00 o’clock in the
afternoon of 31 March 2009 to comply.12

On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation 1-
09), declaring a state of emergency in the province of Sulu.13 It cited the kidnapping incident as
a ground for the said declaration, describing it as a terrorist act pursuant to the Human Security

Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160),
which bestows on the Provincial Governor the power to carry out emergency measures during
man-made and natural disasters and calamities, and to call upon the appropriate national law
enforcement agencies to suppress disorder and lawless violence.

In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up
checkpoints and chokepoints, conduct general search and seizures including arrests, and other
actions necessary to ensure public safety. The pertinent portion of the proclamation states:

NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I, ABDUSAKUR MAHAIL

TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF EMERGENCY IN
THE PROVINCE OF SULU, AND CALL ON THE PHILIPPINE NATIONAL POLICE WITH THE
ASSISTANCE OF THE ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN EMERGENCY
FORCE TO IMPLEMENT THE FOLLOWING:

1. The setting-up of checkpoints and chokepoints in the province;

2. The imposition of curfew for the entire province subject to such Guidelines as
may be issued by proper authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of
the kidnappers and their supporters; and

4. To conduct such other actions or police operations as may be necessary to

ensure public safety.

DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS

31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14

On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent
P/SUPT. Julasirim Kasim.15 Upon arriving at the police station, he was booked, and interviewed
about his relationship to Musin, Jaiton, and Julamin, who were all his deceased relatives. Upon
admitting that he was indeed related to the three, he was detained. After a few hours, former
Punong Barangay Juljahan Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2
Marcial Hajan, SPO3 Muhilmi Ismula, Punong Barangay Alano Mohammad and jeepney driver
Abduhadi Sabdani, were also arrested.16 The affidavit17 of the apprehending officer alleged
that they were suspected ASG supporters and were being arrested under Proclamation 1-09.
The following day, 2 April 2009, the hostage Mary Jane Lacaba was released by the ASG.

On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of the
"Guidelines for the Implementation of Proclamation No. 1, Series of 2009 Declaring a State of
Emergency in the Province of Sulu."18 These Guidelines suspended all Permits to Carry

Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed civilians
to seek exemption from the gun ban only by applying to the Office of the Governor and
obtaining the appropriate identification cards. The said guidelines also allowed general
searches and seizures in designated checkpoints and chokepoints.

On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi, Ahajan
Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the present Petition for
Certiorari and Prohibition,19 claiming that Proclamation 1-09 was issued with grave abuse of
discretion amounting to lack or excess of jurisdiction, as it threatened fundamental freedoms
guaranteed under Article III of the 1987 Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were issued ultra
vires, and thus null and void, for violating Sections 1 and 18, Article VII of the Constitution,
which grants the President sole authority to exercise emergency powers and calling-out powers
as the chief executive of the Republic and commander-in-chief of the armed forces.20
Additionally, petitioners claim that the Provincial Governor is not authorized by any law to
create civilian armed forces under his command, nor regulate and limit the issuances of
PTCFORs to his own private army.

In his Comment, Governor Tan contended that petitioners violated the doctrine on hierarchy of
courts when they filed the instant petition directly in the court of last resort, even if both the
Court of Appeals (CA) and the Regional Trial Courts (RTC) possessed concurrent jurisdiction with
the

Supreme Court under Rule 65.21 This is the only procedural defense raised by respondent Tan.
Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT. Julasirim Kasim, and P/SUPT.
Bienvenido Latag did not file their respective Comments.1âwphi1

On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra vires, as
Governor Tan allegedly acted pursuant to Sections 16 and 465 of the Local Government Code,
which empowers the Provincial Governor to carry out emergency measures during calamities
and disasters, and to call upon the appropriate national law enforcement agencies to suppress
disorder, riot, lawless violence, rebellion or sedition.22 Furthermore, the Sangguniang
Panlalawigan of Sulu authorized the declaration of a state of emergency as evidenced by
Resolution No. 4, Series of 2009 issued on 31 March 2009 during its regular session.23

The threshold issue in the present case is whether or not Section 465, in relation to Section 16,
of the Local Government Code authorizes the respondent governor to declare a state of
emergency, and exercise the powers enumerated under Proclamation 1-09, specifically the
conduct of general searches and seizures. Subsumed herein is the secondary question of
whether or not the provincial governor is similarly clothed with authority to convene the CEF
under the said provisions.

We grant the petition.

I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy of Courts

We first dispose of respondents’ invocation of the doctrine of hierarchy of courts which

allegedly prevents judicial review by this Court in the present case, citing for this specific
purpose, Montes v. Court of Appeals and Purok Bagong Silang Association, Inc. v. Yuipco.24
Simply put, the

doctrine provides that where the issuance of an extraordinary writ is also within the
competence of the CA or the RTC, it is in either of these courts and not in the Supreme Court,
that the specific action for the issuance of such writ must be sought unless special and
important laws are clearly and specifically set forth in the petition. The reason for this is that
this Court is a court of last resort and must so remain if it is to perform the functions assigned
to it by the Constitution and immemorial tradition. It cannot be burdened with deciding cases in
the first instance.25

The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court stated:

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from
the Court. The principle of hierarchy of courts applies generally to cases involving factual
questions. As it is not a trier of facts, the Court cannot entertain cases involving factual issues.
The instant case, however, raises constitutional questions of transcendental importance to the
public. The Court can resolve this case without determining any factual issue related to the
case. Also, the instant case is a petition for mandamus which falls under the original jurisdiction
of the Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary
jurisdiction over the instant case.27

The instant case stems from a petition for certiorari and prohibition, over which the Supreme
Court possesses original jurisdiction.28 More crucially, this case involves acts of a public official
which pertain to restrictive custody, and is thus impressed with transcendental public
importance that would warrant the relaxation of the general rule. The Court would be remiss in
its constitutional duties were it to dismiss the present petition solely due to claims of judicial
hierarchy.

In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public importance

involved in cases that concern restrictive custody, because judicial review in these cases serves
as "a manifestation of the crucial defense of civilians ‘in police power’ cases due to the
diminution of their basic liberties under the guise of a state of emergency."30 Otherwise, the
importance of the high tribunal as the court of last resort would be put to naught, considering
the nature of "emergency" cases, wherein the proclamations and issuances are inherently
short-lived. In finally disposing of the claim that the issue had become moot and academic, the
Court also cited transcendental public importance as an exception, stating:

Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na pangangalaga

(restrictive custody) at pagmonitor ng galaw (monitoring of movements) ng nagpepetisyon,
dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng madla na nakapaloob dito,

(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan
ang kapulisan tungkol dito.

The moot and academic principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution; second, the exceptional character of the situation and
the paramount public interest is involved; third, when [the] constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the
case is capable of repetition yet evading review.

…There is no question that the issues being raised affect the public interest, involving as they
do the people’s basic rights to freedom of expression, of assembly and of the press. Moreover,
the

Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or
rules. It has the symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given by constitutional
guarantees. And lastly, respondents contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.

Evidently, the triple reasons We advanced at the start of Our ruling are justified under the
foregoing exceptions. Every bad, unusual incident where police officers figure in generates
public interest and people watch what will be done or not done to them. Lack of disciplinary
steps taken against them erode public confidence in the police institution. As petitioners
themselves assert, the restrictive custody of policemen under investigation is an existing
practice, hence, the issue is bound to crop up every now and then. The matter is capable of
repetition or susceptible of recurrence. It better be resolved now for the education and
guidance of all concerned.31 (Emphasis supplied)

Hence, the instant petition is given due course, impressed as it is with transcendental public
importance.

II. Only the President is vested with calling-out powers, as the commander-in-chief of the
Republic

i. One executive, one commander-in-chief

As early as Villena v. Secretary of Interior,32 it has already been established that there is one
repository of executive powers, and that is the President of the Republic. This means that when
Section 1, Article VII of the Constitution speaks of executive power, it is granted to the
President and no one else.33 As emphasized by Justice Jose P. Laurel, in his ponencia in Villena:

With reference to the Executive Department of the government, there is one purpose which is
crystal-clear and is readily visible without the projection of judicial searchlight, and that is the
establishment of a single, not plural, Executive. The first section of Article VII of the
Constitution, dealing with the Executive Department, begins with the enunciation of the
principle that "The executive power shall be vested in a President of the Philippines." This
means that the President of the Philippines is the Executive of the Government of the
Philippines, and no other.34
Corollarily, it is only the President, as Executive, who is authorized to exercise emergency
powers as provided under Section 23, Article VI, of the Constitution, as well as what became
known as the calling-out powers under Section 7, Article VII thereof.

ii. The exceptional character of Commander-in-Chief powers dictate that they are exercised by
one president

Springing from the well-entrenched constitutional precept of One President is the notion that
there are certain acts which, by their very nature, may only be performed by the president as
the Head of the State. One of these acts or prerogatives is the bundle of Commander-in-Chief
powers to which the "calling-out" powers constitutes a portion. The President’s Emergency
Powers, on the other hand, is balanced only by the legislative act of Congress, as embodied in
the second paragraph of Section 23, Article 6 of the Constitution:

Article 6, Sec 23(2). In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it may prescribe,
to exercise powers necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment
thereof.35

Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.36

The power to declare a state of martial law is subject to the Supreme Court’s authority to
review the factual basis thereof. 37 By constitutional fiat, the calling-out powers, which is of
lesser gravity than the power to declare martial law, is bestowed upon the President alone. As
noted in Villena, "(t)here are certain constitutional powers and prerogatives of the Chief
Executive of the Nation which must be exercised by him in person and no amount of approval
or ratification will validate the exercise of any of those powers by any other person. Such, for
instance, is his power to suspend the writ of habeas corpus and proclaim martial law x x x.38
Indeed, while the President is still a civilian, Article II, Section 339 of the Constitution mandates
that civilian authority is, at all times, supreme over the military, making the civilian president
the nation’s supreme military leader. The net effect of Article II, Section 3, when read with
Article VII,

Section 18, is that a civilian President is the ceremonial, legal and administrative head of the
armed forces. The Constitution does not require that the President must be possessed of
military training and talents, but as Commander-in-Chief, he has the power to direct military
operations and to determine military strategy. Normally, he would be expected to delegate the
actual command of the armed forces to military experts; but the ultimate power is his.40 As
Commander-in-Chief, he is authorized to direct the movements of the naval and military forces
placed by law at his command, and to employ them in the manner he may deem most
effectual.41

In the case of Integrated Bar of the Philippines v. Zamora,42 the Court had occasion to rule that
the calling-out powers belong solely to the President as commander-in-chief:

When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is
clear from the intent of the framers and from the text of the Constitution itself. The Court, thus,
cannot be called upon to overrule the President’s wisdom or substitute its own. However, this
does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to
show that the President’s decision is totally bereft of factual basis.

There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the
exercise of such power.43 (Emphasis supplied)

Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or review of the President’s action to call out
the armed forces. The distinction places the calling out power in a different category from the
power to declare martial law and the power to suspend the privilege of the writ of habeas
corpus, otherwise, the framers of the Constitution would have simply lumped together the
three powers and provided for their revocation and review without any qualification.44

That the power to call upon the armed forces is discretionary on the president is clear from the
deliberation of the Constitutional Commission:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the
President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary
to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus,
then he can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ of
habeas corpus, his judgment is subject to review. We are making it subject to review by the
Supreme Court and subject to concurrence by the National Assembly. But when he exercises
this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion
that his judgment cannot be reviewed by anybody.

xxx xxx xxx

MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.

The reason for the difference in the treatment of the aforementioned powers highlights the
intent to grant the President the widest leeway and broadest discretion in using the power to
call out because it is considered as the lesser and more benign power compared to the power
to suspend the privilege of the writ of habeas corpus and the power to impose martial law,
both of which involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by this Court.

x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his
judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or
rebellion.45 (Emphasis Supplied)

In the more recent case of Constantino, Jr. v. Cuisia,46 the Court characterized these powers as
exclusive to the President, precisely because they are of exceptional import:

These distinctions hold true to this day as they remain embodied in our fundamental law. There
are certain presidential powers which arise out of exceptional circumstances, and if exercised,
would involve the suspension of fundamental freedoms, or at least call for the supersedence of
executive prerogatives over those exercised by co-equal branches of government. The
declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the
pardoning power, notwithstanding the judicial determination of guilt of the accused, all fall
within this special class that demands the exclusive exercise by the President of the
constitutionally vested power. The list is by no means exclusive, but there must be a showing
that the executive power in question is of similar gravitas and exceptional import.47

In addition to being the commander-in-chief of the armed forces, the President also acts as the
leader of the country’s police forces, under the mandate of Section 17, Article VII of the
Constitution, which provides that, "The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed." During
the deliberations of the Constitutional Commission on the framing of this provision, Fr. Bernas
defended the retention of the word "control," employing the same rationale of singularity of
the office of the president, as the only Executive under the presidential form of government.48

Regarding the country’s police force, Section 6, Article XVI of the Constitution states that: "The
State shall establish and maintain one police force, which shall be national in scope and civilian
in character, to be administered and controlled by a national police commission. The authority
of local executives over the police units in their jurisdiction shall be provided by law."49

A local chief executive, such as the provincial governor, exercises operational supervision over
the police,50 and may exercise control only in day-to-day operations, viz:

Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or by law
full control of the police by the local chief executive and local executives, the mayors. By our
experience, this has spawned warlordism, bossism and sanctuaries for vices and abuses. If the
national government does not have a mechanism to supervise these 1,500 legally, technically
separate police forces, plus 61 city police forces, fragmented police system, we will have a lot of
difficulty in presenting a modern professional police force. So that a certain amount of
supervision and control will have to be exercised by the national government.

For example, if a local government, a town cannot handle its peace and order problems or
police problems, such as riots, conflagrations or organized crime, the national government may
come in, especially if requested by the local executives. Under that situation, if they come in
under such an extraordinary situation, they will be in control. But if the day-to-day business of
police investigation of crime, crime prevention, activities, traffic control, is all lodged in the
mayors, and if they are in complete operational control of the day-to-day business of police
service, what the national government would control would be the administrative aspect.

xxx xxx xxx

Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual duties
being performed by the ordinary policemen, will be under the supervision of the local
executives?

Mr. Natividad: Yes, Madam President.

xxx xxx xxx

Mr. de los Reyes: But in exceptional cases, even the operational control can be taken over by
the National Police Commission?

Mr. Natividad: If the situation is beyond the capacity of the local governments.51 (Emphases
supplied)
Furthermore according to the framers, it is still the President who is authorized to exercise
supervision and control over the police, through the National Police Commission:

Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-in-Chief
of all the armed forces.

Mr. Natividad: Yes, Madam President.

Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not suppose
they come under the Commander-in-Chief powers of the President of the Philippines.

Mr. Natividad: They do, Madam President. By law, they are under the supervision and control
of the President of the Philippines.

Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national police.

Mr. Natividad: He is the President.

Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that the
President is the Commander-in-Chief of all the armed forces.

Mr. Natividad: No, not under the Commander-in-Chief provision.

Mr. Rodrigo: There are two other powers of the President. The

President has control over ministries, bureaus and offices, and supervision over local
governments. Under which does the police fall, under control or under supervision?

Mr. Natividad: Both, Madam President.

Mr. Rodrigo: Control and supervision.

Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the
President.52

In the discussions of the Constitutional Commission regarding the above provision it is clear that
the framers never intended for local chief executives to exercise unbridled control over the police
in emergency situations. This is without prejudice to their authority over police units in their
jurisdiction as provided by law, and their prerogative to seek assistance from the police in day
to day situations, as contemplated by the Constitutional Commission. But as a civilian agency of
the government, the police, through the NAPOLCOM, properly comes within, and is subject to,
the exercise by the President of the power of executive control.53

iii. The provincial governor does not possess the same calling-out powers as the President
Given the foregoing, respondent provincial governor is not endowed with the power to call
upon the armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan
exceeded his authority when he declared a state of emergency and called upon the Armed
Forces, the police, and his own Civilian Emergency Force. The calling-out powers contemplated
under the Constitution is exclusive to the President. An exercise by another official, even if he is
the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465
of the Local Government Code, as will be discussed subsequently.

Respondents, however, justify this stance by stating that nowhere in the seminal case of David
v. Arroyo, which dealt squarely with the issue of the declaration of a state of emergency, does it
limit the said authority to the President alone. Respondents contend that the ruling in David
expressly limits the authority to declare a national emergency, a condition which covers the
entire country, and does not include emergency situations in local government units.54 This
claim is belied by the clear intent of the framers that in all situations involving threats to
security, such as lawless violence, invasion or rebellion, even in localized areas, it is still the
President who possesses the sole authority to exercise calling-out powers. As reflected in the
Journal of the Constitutional Commission:

Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER in lieu of
"invasion or rebellion." Mr. Sumulong stated that the committee could not accept the
amendment because under the first section of Section 15, the President may call out and make
use of the armed forces to prevent or suppress not only lawless violence but even invasion or
rebellion without declaring martial law. He observed that by deleting "invasion or rebellion"
and substituting PUBLIC DISORDER, the President would have to declare martial law before he
can make use of the armed forces to prevent or suppress lawless invasion or rebellion.

Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter situation
where there is some lawless violence in a small portion of the country or public disorder in
another at which times, the armed forces can be called to prevent or suppress these incidents.
He noted that the Commander-in-Chief can do so in a minor degree but he can also exercise
such powers should the situation worsen. The words "invasion or rebellion" to be eliminated on
line 14 are covered by the following sentence which provides for "invasion or rebellion." He
maintained that the proposed amendment does not mean that under such circumstances, the
President cannot call on the armed forces to prevent or suppress the same.55 (Emphasis
supplied)

III. Section 465 of the Local

Government Code cannot be invoked to justify the powers enumerated under Proclamation 1-09

Respondent governor characterized the kidnapping of the three ICRC workers as a terroristic
act, and used this incident to justify the exercise of the powers enumerated under Proclamation
1-09.56 He invokes Section 465, in relation to Section 16, of the Local Government Code, which
purportedly allows the governor to carry out emergency measures and call upon the
appropriate national law enforcement agencies for assistance. But a closer look at the said
proclamation shows that there is no provision in the Local Government Code nor in any law on
which the broad and unwarranted powers granted to the Governor may be based.

Petitioners cite the implementation of "General Search and Seizure including arrests in the
pursuit of the kidnappers and their supporters,"57 as being violative of the constitutional
proscription on general search warrants and general seizures. Petitioners rightly assert that this
alone would be sufficient to render the proclamation void, as general searches and seizures are
proscribed, for being violative of the rights enshrined in the Bill of Rights, particularly:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.58

In fact, respondent governor has arrogated unto himself powers exceeding even the martial law
powers of the President, because as the Constitution itself declares, "A state of martial law
does not suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military
courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ."59

We find, and so hold, that there is nothing in the Local Government Code which justifies the
acts sanctioned under the said Proclamation. Not even Section 465 of the said Code, in relation
to Section 16, which states:

Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.

xxx xxx xxx

(b) For efficient, effective and economical governance the purpose of which is the general
welfare of the province and its inhabitants pursuant to Section 16 of this Code, the provincial
governor shall:

(1) Exercise general supervision and control over all programs, projects, services, and activities
of the provincial government, and in this connection, shall:

xxx xxx xxx

(vii) Carry out such emergency measures as may be necessary during and in the aftermath of
man-made and natural disasters and calamities;
(2) Enforce all laws and ordinances relative to the governance of the province and the exercise
of the appropriate corporate powers provided for under Section 22 of this Code, implement all
approved policies, programs, projects, services and activities of the province and, in addition to
the foregoing, shall:

xxx xxx xxx

(vi) Call upon the appropriate national law enforcement agencies to suppress disorder, riot,
lawless violence, rebellion or sedition or to apprehend violators of the law when public interest
so requires and the police forces of the component city or municipality where the disorder or
violation is happening are inadequate to cope with the situation or the violators.

Section 16. General Welfare. - Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and those which are essential to the
promotion of the general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance economic prosperity
and social justice, promote full employment among their residents, maintain peace and order,
and preserve the comfort and convenience of their inhabitants. (Emphases supplied)

Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the said
provision expressly refers to calamities and disasters, whether man-made or natural. The
governor, as local chief executive of the province, is certainly empowered to enact and
implement emergency measures during these occurrences. But the kidnapping incident in the
case at bar cannot be considered as a calamity or a disaster. Respondents cannot find any legal
mooring under this provision to justify their actions.

Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two reasons.
First, the Armed Forces of the Philippines does not fall under the category of a "national law
enforcement agency," to which the National Police Commission (NAPOLCOM) and its
departments belong.

Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and
defend the Republic against all enemies, foreign and domestic. Its aim is also to secure the
integrity of the national territory.60

Second, there was no evidence or even an allegation on record that the local police forces were
inadequate to cope with the situation or apprehend the violators. If they were inadequate, the
recourse of the provincial governor was to ask the assistance of the Secretary of Interior and
Local Government, or such other authorized officials, for the assistance of national law
enforcement agencies.
The Local Government Code does not involve the diminution of central powers inherently
vested in the National Government, especially not the prerogatives solely granted by the
Constitution to the President in matters of security and defense.

The intent behind the powers granted to local government units is fiscal, economic, and
administrative in nature.1âwphi1 The Code is concerned only with powers that would make the
delivery of basic services more effective to the constituents,61 and should not be unduly
stretched to confer calling-out powers on local executives.

In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of powers is
a step towards the autonomy of local government units (LGUs), and is actually an experiment
whose success heavily relies on the power of taxation of the LGUs. The underpinnings of the
Code can be found in Section 5, Article II of the 1973 Constitution, which allowed LGUs to
create their own sources of revenue.62 During the interpellation made by Mr. Tirol addressed
to Mr. de Pedro, the latter emphasized that "Decentralization is an administrative concept and
the process of shifting and delegating power from a central point to subordinate levels to
promote independence, responsibility, and quicker decision-making. … (I)t does not involve any
transfer of final authority from the national to field levels, nor diminution of central office
powers and responsibilities. Certain government agencies, including the police force, are
exempted from the decentralization process because their functions are not inherent in local
government units."63

IV. Provincial governor is not authorized to convene CEF

Pursuant to the national policy to establish one police force, the organization of private citizen
armies is proscribed. Section 24 of Article XVIII of the Constitution mandates that:

Private armies and other armed groups not recognized by duly constituted authority shall be
dismantled. All paramilitary forces including Civilian Home Defense Forces (CHDF) not
consistent with the citizen armed force established in this Constitution, shall be dissolved or,
where appropriate, converted into the regular force.

Additionally, Section 21of Article XI states that, "The preservation of peace and order within the
regions shall be the responsibility of the local police agencies which shall be organized,
maintained, supervised, and utilized in accordance with applicable laws. The defense and
security of the regions shall be the responsibility of the National Government."

Taken in conjunction with each other, it becomes clear that the Constitution does not authorize
the organization of private armed groups similar to the CEF convened by the respondent
Governor. The framers of the Constitution were themselves wary of armed citizens’ groups, as
shown in the following proceedings:

MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary force
operating under the cloak, under the mantle of legality is creating a lot of problems precisely by
being able to operate as an independent private army for many regional warlords. And at the
same time, this I think has been the thrust, the intent of many of the discussions and objections
to the paramilitary units and the armed groups.

MR. PADILLA: My proposal covers two parts: the private armies of political warlords and other
armed torces not recognized by constituted authority which shall be dismantled and dissolved.
In my trips to the provinces, I heard of many abuses committed by the CHDF (Civilian Home
Defense Forces), specially in Escalante, Negros Occidental. But I do not know whether a
particular CHDF is approved or authorized by competent authority. If it is not authorized, then
the CHDF will have to be dismantled. If some CHDFs, say in other provinces, are authorized by
constituted authority, by the Armed Forces of the Philippines, through the Chief of Staff or the
Minister of National Defense, if they are recognized and authorized, then they will not be
dismantled. But I cannot give a categorical answer to any specific CHDF unit, only the principle
that if they are armed forces which are not authorized, then they should be dismantled. 64
(Emphasis supplied)

Thus, with the discussions in the Constitutional Commission as guide, the creation of the
Civilian Emergency Force (CEF) in the present case, is also invalid.

WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding respondents

to desist from further proceedings m implementing Proclamation No. 1, Series of 2009, and its
Implementing Guidelines. The said proclamation and guidelines are hereby declared NULL and
VOID for having been issued in grave abuse of discretion, amounting to lack or excess of
jurisdiction.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice

PRESBITER J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice
 (On leave)
MARIANO C. DEL CASTILLO
LUCAS P. BERSAMIN*
Associate Justice
Associate Justice

(On leave)
MARTIN S. VILLARAMA, JR.
ROBERTO A. ABAD*
Associate Justice
Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

BIENVENIDO L. REYES
ESTELA M. PERLAS-BERNABE
Associate Justice

Economy

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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.

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 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 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.

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.

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.

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 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 requirement20 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 Act21 – require ratification through a plebiscite. We stand by this interpretation.

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.

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 cases22 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.

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.
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.

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, 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

WE CONCUR:

RENATO C. CORONA
Chief Justice

I reiterate my Dissenting Opinion I reiterate my Dissenting Opinion

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

I maintain my vote joining the dissent

of Justice Velasco DIOSDADO M. PERALTA
TERESITA J. LEONARDO-DE CASTRO Associate Justice
Associate Justice

(On Official Leave)

LUCAS P. BERSAMIN
MARIANO C. DEL CASTILLO*
Associate Justice
Associate Justice

I maintain my dissent
MARTIN S. VILLARAMA, JR.
ROBERTO A. ABAD
Associate Justice
Associate Justice
 I join the Dissent of J. Carpio
JOSE CATRAL MENDOZA
JOSE PORTUGAL PEREZ
Associate Justice
Associate Justice

(On Leave)
BIENVENIDO L. REYES
MARIA LOURDES P. A. SERENO**
Associate Justice
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

Miscellaneous

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. 171947-48 February 15, 2011

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND

NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1 DEPARTMENT
OF HEALTH, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS, DEPARTMENT OF BUDGET AND MANAGEMENT, PHILIPPINE COAST GUARD,
PHILIPPINE NATIONAL POLICE MARITIME GROUP, and DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT, Petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS
QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA,
FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON
SANTIAGUEL, and JAIME AGUSTIN R. OPOSA, Respondents.

RESOLUTION

VELASCO, JR., J.:

On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48 ordering
petitioners to clean up, rehabilitate and preserve Manila Bay in their different capacities. The
fallo reads:

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV
No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No.
1851-99 are AFFIRMED but with MODIFICATIONS in view of subsequent developments or
supervening events in the case. The fallo of the RTC Decision shall now read:

WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government

agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters
to SB level (Class B sea waters per Water Classification Tables under DENR Administrative Order
No. 34 [1990]) to make them fit for swimming, skin-diving, and other forms of contact
recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible
for the conservation, management, development, and proper use of the country’s
environment and natural resources, and Sec. 19 of RA 9275, designating the DENR as
the primary government agency responsible for its enforcement and implementation,
the DENR is directed to fully implement its Operational Plan for the Manila Bay Coastal
Strategy for the rehabilitation, restoration, and conservation of the Manila Bay at the
earliest possible time. It is ordered to call regular coordination meetings with concerned
government departments and agencies to ensure the successful implementation of the
aforesaid plan of action in accordance with its indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec.
25 of the Local Government Code of 1991, the DILG, in exercising the President’s power
of general supervision and its duty to promulgate guidelines in establishing waste
management programs under Sec. 43 of the Philippine Environment Code (PD 1152),
shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and
Bataan to inspect all factories, commercial establishments, and private homes along the
banks of the major river systems in their respective areas of jurisdiction, such as but not
limited to the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas)
Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna
De Bay, and other minor rivers and waterways that eventually discharge water into the
Manila Bay; and the lands abutting the bay, to determine whether they have
wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to
require non-complying establishments and homes to set up said facilities or septic tanks
within a reasonable time to prevent industrial wastes, sewage water, and human wastes
from flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of
closure or imposition of fines and other sanctions.

(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide, install, operate,
and maintain the necessary adequate waste water treatment facilities in Metro Manila,
Rizal, and Cavite where needed at the earliest possible time.

(4) Pursuant to RA 9275, the LWUA, through the local water districts and in coordination
with the DENR, is ordered to provide, install, operate, and maintain sewerage and
sanitation facilities and the efficient and safe collection, treatment, and disposal of
sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where
needed at the earliest possible time.

(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered to improve and
restore the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro
Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using
recognized methods, the fisheries and aquatic resources in the Manila Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in
accordance with Sec. 124 of RA 8550, in coordination with each other, shall apprehend
violators of PD 979, RA 8550, and other existing laws and regulations designed to
prevent marine pollution in the Manila Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention for the
Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such
measures to prevent the discharge and dumping of solid and liquid wastes and other
ship-generated wastes into the Manila Bay waters from vessels docked at ports and
apprehend the violators.

(8) The MMDA, as the lead agency and implementor of programs and projects for flood
control projects and drainage services in Metro Manila, in coordination with the DPWH,
DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development
Coordinating Council (HUDCC), and other agencies, shall dismantle and remove all
structures, constructions, and other encroachments established or built in violation of
RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers,
and connecting waterways and esteros in Metro Manila. The DPWH, as the principal
implementor of programs and projects for flood control services in the rest of the
country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in
coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other
concerned government agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach of RA 7279 and other applicable
laws along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan)
 River, the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting
waterways, and esteros that discharge wastewater into the Manila Bay.

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill,
as prescribed by RA 9003, within a period of one (1) year from finality of this Decision.
On matters within its territorial jurisdiction and in connection with the discharge of its
duties on the maintenance of sanitary landfills and like undertakings, it is also ordered
to cause the apprehension and filing of the appropriate criminal cases against violators
of the respective penal provisions of RA 9003, Sec. 27 of RA 9275 (the Clean Water Act),
and other existing laws on pollution.

(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one
(1) year from finality of this Decision, determine if all licensed septic and sludge
companies have the proper facilities for the treatment and disposal of fecal sludge and
sewage coming from septic tanks. The DOH shall give the companies, if found to be non-
complying, a reasonable time within which to set up the necessary facilities under pain
of cancellation of its environmental sanitation clearance.

(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of RA 9003, the
DepEd shall integrate lessons on pollution prevention, waste management,
environmental protection, and like subjects in the school curricula of all levels to
inculcate in the minds and hearts of students and, through them, their parents and
friends, the importance of their duty toward achieving and maintaining a balanced and
healthful ecosystem in the Manila Bay and the entire Philippine archipelago.

(11) The DBM shall consider incorporating an adequate budget in the General
Appropriations Act of 2010 and succeeding years to cover the expenses relating to the
cleanup, restoration, and preservation of the water quality of the Manila Bay, in line
with the country’s development objective to attain economic growth in a manner
consistent with the protection, preservation, and revival of our marine waters.

(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM,
PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the
principle of "continuing mandamus," shall, from finality of this Decision, each submit to
the Court a quarterly progressive report of the activities undertaken in accordance with
this Decision.

SO ORDERED.

The government agencies did not file any motion for reconsideration and the Decision became
final in January 2009.

The case is now in the execution phase of the final and executory December 18, 2008 Decision.
The Manila Bay Advisory Committee was created to receive and evaluate the quarterly
progressive reports on the activities undertaken by the agencies in accordance with said
decision and to monitor the execution phase.

In the absence of specific completion periods, the Committee recommended that time frames
be set for the agencies to perform their assigned tasks. This may be viewed as an encroachment
over the powers and functions of the Executive Branch headed by the President of the
Philippines.

This view is misplaced.

The issuance of subsequent resolutions by the Court is simply an exercise of judicial power
under Art. VIII of the Constitution, because the execution of the Decision is but an integral part
of the adjudicative function of the Court. None of the agencies ever questioned the power of
the Court to implement the December 18, 2008 Decision nor has any of them raised the alleged
encroachment by the Court over executive functions.

While additional activities are required of the agencies like submission of plans of action, data
or status reports, these directives are but part and parcel of the execution stage of a final
decision under Rule 39 of the Rules of Court. Section 47 of Rule 39 reads:

Section 47. Effect of judgments or final orders.––The effect of a judgment or final order
rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final
order, may be as follows:

xxxx

(c) In any other litigation between the same parties of their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its face
to have been so adjudged, or which was actually and necessarily included therein or necessary
thereto. (Emphasis supplied.)

It is clear that the final judgment includes not only what appears upon its face to have been so
adjudged but also those matters "actually and necessarily included therein or necessary
thereto." Certainly, any activity that is needed to fully implement a final judgment is necessarily
encompassed by said judgment.

Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of the Rules
of Procedure for Environmental cases:

Sec. 7. Judgment.––If warranted, the court shall grant the privilege of the writ of continuing
mandamus requiring respondent to perform an act or series of acts until the judgment is fully
satisfied and to grant such other reliefs as may be warranted resulting from the wrongful or
illegal acts of the respondent. The court shall require the respondent to submit periodic reports
detailing the progress and execution of the judgment, and the court may, by itself or through a
commissioner or the appropriate government agency, evaluate and monitor compliance. The
petitioner may submit its comments or observations on the execution of the judgment.

Sec. 8. Return of the writ.––The periodic reports submitted by the respondent detailing
compliance with the judgment shall be contained in partial returns of the writ. Upon full
satisfaction of the judgment, a final return of the writ shall be made to the court by the
respondent. If the court finds that the judgment has been fully implemented, the satisfaction of
judgment shall be entered in the court docket. (Emphasis supplied.)

With the final and executory judgment in MMDA, the writ of continuing mandamus issued in
MMDA means that until petitioner-agencies have shown full compliance with the Court’s
orders, the Court exercises continuing jurisdiction over them until full execution of the
judgment.

There being no encroachment over executive functions to speak of, We shall now proceed to
the recommendation of the Manila Bay Advisory Committee.

Several problems were encountered by the Manila Bay Advisory Committee.2 An evaluation of
the quarterly progressive reports has shown that (1) there are voluminous quarterly
progressive reports that are being submitted; (2) petitioner-agencies do not have a uniform
manner of reporting their cleanup, rehabilitation and preservation activities; (3) as yet no
definite deadlines have been set by petitioner DENR as to petitioner-agencies’ timeframe for
their respective duties; (4) as of June 2010 there has been a change in leadership in both the
national and local levels; and (5) some agencies have encountered difficulties in complying with
the Court’s directives.

In order to implement the afore-quoted Decision, certain directives have to be issued by the
Court to address the said concerns.

Acting on the recommendation of the Manila Bay Advisory Committee, the Court hereby
resolves to ORDER the following:

(1) The Department of Environment and Natural Resources (DENR), as lead agency in the
Philippine Clean Water Act of 2004, shall submit to the Court on or before June 30, 2011 the
updated Operational Plan for the Manila Bay Coastal Strategy.

The DENR is ordered to submit summarized data on the overall quality of Manila Bay waters for
all four quarters of 2010 on or before June 30, 2011.

The DENR is further ordered to submit the names and addresses of persons and companies in
Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan that generate toxic and
hazardous waste on or before September 30, 2011.
(2) On or before June 30, 2011, the Department of the Interior and Local Government (DILG)
shall order the Mayors of all cities in Metro Manila; the Governors of Rizal, Laguna, Cavite,
Bulacan, Pampanga and Bataan; and the Mayors of all the cities and towns in said provinces to
inspect all factories, commercial establishments and private homes along the banks of the
major river systems––such as but not limited to the Pasig-Marikina-San Juan Rivers, the
National Capital Region (Paranaque-Zapote, Las Pinas) Rivers, the Navotas-Malabon-Tullahan-
Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River,
the Imus (Cavite) River, and the Laguna De Bay––and other minor rivers and waterways within
their jurisdiction that eventually discharge water into the Manila Bay and the lands abutting it,
to determine if they have wastewater treatment facilities and/or hygienic septic tanks, as
prescribed by existing laws, ordinances, rules and regulations. Said local government unit (LGU)
officials are given up to September 30, 2011 to finish the inspection of said establishments and
houses.

In case of non-compliance, the LGU officials shall take appropriate action to ensure compliance
by non-complying factories, commercial establishments and private homes with said law, rules
and regulations requiring the construction or installment of wastewater treatment facilities or
hygienic septic tanks.

The aforementioned governors and mayors shall submit to the DILG on or before December 31,
2011 their respective compliance reports which will contain the names and addresses or offices
of the owners of all the non-complying factories, commercial establishments and private
homes, copy furnished the concerned environmental agency, be it the local DENR office or the
Laguna Lake Development Authority.

The DILG is required to submit a five-year plan of action that will contain measures intended to
ensure compliance of all non-complying factories, commercial establishments, and private
homes.

On or before June 30, 2011, the DILG and the mayors of all cities in Metro Manila shall consider
providing land for the wastewater facilities of the Metropolitan Waterworks and Sewerage
System (MWSS) or its concessionaires (Maynilad and Manila Water, Inc.) within their respective
jurisdictions.

(3) The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro
Manila, Rizal and Cavite that do not have the necessary wastewater treatment facilities. Within
the same period, the concessionaires of the MWSS shall submit their plans and projects for the
construction of wastewater treatment facilities in all the aforesaid areas and the completion
period for said facilities, which shall not go beyond 2037.

On or before June 30, 2011, the MWSS is further required to have its two concessionaires
submit a report on the amount collected as sewerage fees in their respective areas of operation
as of December 31, 2010.
(4) The Local Water Utilities Administration is ordered to submit on or before September 30,
2011 its plan to provide, install, operate and maintain sewerage and sanitation facilities in said
cities and towns and the completion period for said works, which shall be fully implemented by
December 31, 2020.

(5) The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources,
shall submit to the Court on or before June 30, 2011 a report on areas in Manila Bay where
marine life has to be restored or improved and the assistance it has extended to the LGUs in
Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan in developing the fisheries
and aquatic resources in Manila Bay. The report shall contain monitoring data on the marine
life in said areas. Within the same period, it shall submit its five-year plan to restore and
improve the marine life in Manila Bay, its future activities to assist the aforementioned LGUs for
that purpose, and the completion period for said undertakings.

The DA shall submit to the Court on or before September 30, 2011 the baseline data as of
September 30, 2010 on the pollution loading into the Manila Bay system from agricultural and
livestock sources.

(6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list of
violators it has apprehended and the status of their cases. The PPA is further ordered to include
in its report the names, make and capacity of the ships that dock in PPA ports. The PPA shall
submit to the Court on or before June 30, 2011 the measures it intends to undertake to
implement its compliance with paragraph 7 of the dispositive portion of the MMDA Decision
and the completion dates of such measures.

The PPA should include in its report the activities of its concessionaire that collects and disposes
of the solid and liquid wastes and other ship-generated wastes, which shall state the names,
make and capacity of the ships serviced by it since August 2003 up to the present date, the
dates the ships docked at PPA ports, the number of days the ship was at sea with the
corresponding number of passengers and crew per trip, the volume of solid, liquid and other
wastes collected from said ships, the treatment undertaken and the disposal site for said
wastes.

(7) The Philippine National Police (PNP) Maritime Group shall submit on or before June 30, 2011
its five-year plan of action on the measures and activities it intends to undertake to apprehend
the violators of Republic Act No. (RA) 8550 or the Philippine Fisheries Code of 1998 and other
pertinent laws, ordinances and regulations to prevent marine pollution in Manila Bay and to
ensure the successful prosecution of violators.

The Philippine Coast Guard shall likewise submit on or before June 30, 2011 its five-year plan of
action on the measures and activities they intend to undertake to apprehend the violators of
Presidential Decree No. 979 or the Marine Pollution Decree of 1976 and RA 9993 or the
Philippine Coast Guard Law of 2009 and other pertinent laws and regulations to prevent marine
pollution in Manila Bay and to ensure the successful prosecution of violators.
(8) The Metropolitan Manila Development Authority (MMDA) shall submit to the Court on or
before June 30, 2011 the names and addresses of the informal settlers in Metro Manila who, as
of December 31, 2010, own and occupy houses, structures, constructions and other
encroachments established or built along the Pasig-Marikina-San Juan Rivers, the NCR
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and
connecting waterways and esteros, in violation of RA 7279 and other applicable laws. On or
before June 30, 2011, the MMDA shall submit its plan for the removal of said informal settlers
and the demolition of the aforesaid houses, structures, constructions and encroachments, as
well as the completion dates for said activities, which shall be fully implemented not later than
December 31, 2015.

The MMDA is ordered to submit a status report, within thirty (30) days from receipt of this
Resolution, on the establishment of a sanitary landfill facility for Metro Manila in compliance
with the standards under RA 9003 or the Ecological Solid Waste Management Act.

On or before June 30, 2011, the MMDA shall submit a report of the location of open and
controlled dumps in Metro Manila whose operations are illegal after February 21, 2006,3
pursuant to Secs. 36 and 37 of RA 9003, and its plan for the closure of these open and
controlled dumps to be accomplished not later than December 31, 2012. Also, on or before
June 30, 2011, the DENR Secretary, as Chairperson of the National Solid Waste Management
Commission (NSWMC), shall submit a report on the location of all open and controlled dumps
in Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan.

On or before June 30, 2011, the DENR Secretary, in his capacity as NSWMC Chairperson, shall
submit a report on whether or not the following landfills strictly comply with Secs. 41 and 42 of
RA 9003 on the establishment and operation of sanitary landfills, to wit:

National Capital Region

1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City

2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City

Region III

3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan

4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan

5. Brgy. Minuyan, San Jose del Monte City, Bulacan

6. Brgy. Mapalad, Santa Rosa, Nueva Ecija

7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone

Region IV-A

8. Kalayaan (Longos), Laguna

9. Brgy. Sto. Nino, San Pablo City, Laguna

10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna

11. Morong, Rizal

12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal (ISWIMS)

13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)

On or before June 30, 2011, the MMDA and the seventeen (17) LGUs in Metro Manila are
ordered to jointly submit a report on the average amount of garbage collected monthly per
district in all the cities in Metro Manila from January 2009 up to December 31, 2010 vis-à-vis
the average amount of garbage disposed monthly in landfills and dumpsites. In its quarterly
report for the last quarter of 2010 and thereafter, MMDA shall report on the apprehensions for
violations of the penal provisions of RA 9003, RA 9275 and other laws on pollution for the said
period.

On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna, Cavite, Bulacan,
Pampanga, and Bataan shall submit the names and addresses of the informal settlers in their
respective areas who, as of September 30, 2010, own or occupy houses, structures,
constructions, and other encroachments built along the Meycauayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna de Bay, and
other rivers, connecting waterways and esteros that discharge wastewater into the Manila Bay,
in breach of RA 7279 and other applicable laws. On or before June 30, 2011, the DPWH and the
aforesaid LGUs shall jointly submit their plan for the removal of said informal settlers and the
demolition of the aforesaid structures, constructions and encroachments, as well as the
completion dates for such activities which shall be implemented not later than December 31,
2012.

(9) The Department of Health (DOH) shall submit to the Court on or before June 30, 2011 the
names and addresses of the owners of septic and sludge companies including those that do not
have the proper facilities for the treatment and disposal of fecal sludge and sewage coming
from septic tanks.

The DOH shall implement rules and regulations on Environmental Sanitation Clearances and
shall require companies to procure a license to operate from the DOH.
The DOH and DENR-Environmental Management Bureau shall develop a toxic and hazardous
waste management system by June 30, 2011 which will implement segregation of
hospital/toxic/hazardous wastes and prevent mixing with municipal solid waste.

On or before June 30, 2011, the DOH shall submit a plan of action to ensure that the said
companies have proper disposal facilities and the completion dates of compliance.1avvphi1

(10) The Department of Education (DepEd) shall submit to the Court on or before May 31, 2011
a report on the specific subjects on pollution prevention, waste management, environmental
protection, environmental laws and the like that it has integrated into the school curricula in all
levels for the school year 2011-2012.

On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure compliance
of all the schools under its supervision with respect to the integration of the aforementioned
subjects in the school curricula which shall be fully implemented by June 30, 2012.

(11) All the agencies are required to submit their quarterly reports electronically using the
forms below. The agencies may add other key performance indicators that they have identified.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

See dissenting opinion I join the dissent of J. Carpio

ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

I join the dissent of J. Carpio

DIOSDADO M. PERALTA
ARTURO D. BRION
Associate Justice
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice
 ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

See dissenting opinion

MARIA LOURDES P. A. SERENO
Associate Justice

Sec 12.

Republic of the Philippines

Supreme Court

Manila

SECOND DIVISION
 BRIGIDO B. QUIAO, G.R. No 176556

Petitioner,

Present:

CARPIO, J., Chairperson,

- versus - BRION,

PEREZ,

SERENO, and

REYES, JJ.

RITA C. QUIAO, KITCHIE C. QUIAO, LOTIS C.

QUIAO, PETCHIE C. QUIAO, represented by their
mother RITA QUIAO,

Respondents. Promulgated:

July 4, 2012

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

DECISION

REYES, J.:

The family is the basic and the most important institution of society. It is in the family
where children are born and molded either to become useful citizens of the country or
troublemakers in the community. Thus, we are saddened when parents have to separate and
fight over properties, without regard to the message they send to their children. Notwithstanding
this, we must not shirk from our obligation to rule on this case involving legal separation
escalating to questions on dissolution and partition of properties.

The Case

This case comes before us via Petition for Review on Certiorariix[1] under Rule 45 of the
Rules of Court. The petitioner seeks that we vacate and set aside the Orderix[2] dated January 8,
2007 of the Regional Trial Court (RTC), Branch 1, Butuan City. In lieu of the said order, we are
asked to issue a Resolution defining the net profits subject of the forfeiture as a result of the
decree of legal separation in accordance with the provision of Article 102(4) of the Family Code,
or alternatively, in accordance with the provisions of Article 176 of the Civil Code.

Antecedent Facts

On October 26, 2000, herein respondent Rita C. Quiao (Rita) filed a complaint for legal
separation against herein petitioner Brigido B. Quiao (Brigido).ix[3] Subsequently, the RTC
rendered a Decisionix[4] dated October 10, 2005, the dispositive portion of which provides:
 WHEREFORE, viewed from the foregoing considerations, judgment is
hereby rendered declaring the legal separation of plaintiff Rita C. Quiao and
defendant-respondent Brigido B. Quiao pursuant to Article 55.

As such, the herein parties shall be entitled to live separately from each
other, but the marriage bond shall not be severed.

Except for Letecia C. Quiao who is of legal age, the three minor children,
namely, Kitchie, Lotis and Petchie, all surnamed Quiao shall remain under the
custody of the plaintiff who is the innocent spouse.

Further, except for the personal and real properties already foreclosed by
the RCBC, all the remaining properties, namely:

1. coffee mill in Balongagan, Las Nieves, Agusan del Norte;

2. coffee mill in Durian, Las Nieves, Agusan del Norte;
3. corn mill in Casiklan, Las Nieves, Agusan del Norte;
4. coffee mill in Esperanza, Agusan del Sur;
5. a parcel of land with an area of 1,200 square meters located in
Tungao, Butuan City;
6. a parcel of agricultural land with an area of 5 hectares located in
Manila de Bugabos, Butuan City;
7. a parcel of land with an area of 84 square meters located in Tungao,
Butuan City;
8. Bashier Bon Factory located in Tungao, Butuan City;

shall be divided equally between herein [respondents] and [petitioner] subject to

the respective legitimes of the children and the payment of the unpaid conjugal
liabilities of [P]45,740.00.

[Petitioners] share, however, of the net profits earned by the conjugal

partnership is forfeited in favor of the common children.

He is further ordered to reimburse [respondents] the sum of [P]19,000.00

as attorney's fees and litigation expenses of [P]5,000.00[.]

SO ORDERED.ix[5]
 Neither party filed a motion for reconsideration and appeal within the period provided
for under Section 17(a) and (b) of the Rule on Legal Separation.ix[6]

On December 12, 2005, the respondents filed a motion for executionix[7] which the trial
court granted in its Order dated December 16, 2005, the dispositive portion of which reads:

Wherefore, finding the motion to be well taken, the same is hereby

granted. Let a writ of execution be issued for the immediate enforcement of the
Judgment.

SO ORDERED.ix[8]

Subsequently, on February 10, 2006, the RTC issued a Writ of Executionix[9] which reads
as follows:

NOW THEREFORE, that of the goods and chattels of the [petitioner]

BRIGIDO B. QUIAO you cause to be made the sums stated in the afore-quoted
DECISION [sic], together with your lawful fees in the service of this Writ, all in the
Philippine Currency.

But if sufficient personal property cannot be found whereof to satisfy this

execution and your lawful fees, then we command you that of the lands and
buildings of the said [petitioner], you make the said sums in the manner required
by law. You are enjoined to strictly observed Section 9, Rule 39, Rule [sic] of the
1997 Rules of Civil Procedure.

You are hereby ordered to make a return of the said proceedings

immediately after the judgment has been satisfied in part or in full in consonance
with Section 14, Rule 39 of the 1997 Rules of Civil Procedure, as amended.ix[10]
 On July 6, 2006, the writ was partially executed with the petitioner paying the
respondents the amount of P46,870.00, representing the following payments:

(a) P22,870.00 as petitioner's share of the payment of the conjugal share;

(b) P19,000.00 as attorney's fees; and

(c) P5,000.00 as litigation expenses.ix[11]

On July 7, 2006, or after more than nine months from the promulgation of the Decision,
the petitioner filed before the RTC a Motion for Clarification,ix[12] asking the RTC to define the
term Net Profits Earned.

To resolve the petitioner's Motion for Clarification, the RTC issued an Orderix[13] dated
August 31, 2006, which held that the phrase NET PROFIT EARNED denotes the remainder of the
properties of the parties after deducting the separate properties of each [of the] spouse and the
debts.ix[14] The Order further held that after determining the remainder of the properties, it
shall be forfeited in favor of the common children because the offending spouse does not have
any right to any share of the net profits earned, pursuant to Articles 63, No. (2) and 43, No. (2) of
the Family Code.ix[15] The dispositive portion of the Order states:

WHEREFORE, there is no blatant disparity when the sheriff intends to

forfeit all the remaining properties after deducting the payments of the debts for
only separate properties of the defendant-respondent shall be delivered to him
which he has none.
 The Sheriff is herein directed to proceed with the execution of the
Decision.

IT IS SO ORDERED.ix[16]

Not satisfied with the trial court's Order, the petitioner filed a Motion for
Reconsiderationix[17] on September 8, 2006. Consequently, the RTC issued another Orderix[18]
dated November 8, 2006, holding that although the Decision dated October 10, 2005 has become
final and executory, it may still consider the Motion for Clarification because the petitioner simply
wanted to clarify the meaning of net profit earned.ix[19] Furthermore, the same Order held:

ALL TOLD, the Court Order dated August 31, 2006 is hereby ordered set
aside. NET PROFIT EARNED, which is subject of forfeiture in favor of [the] parties'
common children, is ordered to be computed in accordance [with] par. 4 of Article
102 of the Family Code.ix[20]

On November 21, 2006, the respondents filed a Motion for Reconsideration,ix[21] praying
for the correction and reversal of the Order dated November 8, 2006. Thereafter, on January 8,
2007,ix[22] the trial court had changed its ruling again and granted the respondents' Motion for
Reconsideration whereby the Order dated November 8, 2006 was set aside to reinstate the Order
dated August 31, 2006.

Not satisfied with the trial court's Order, the petitioner filed on February 27, 2007 this
instant Petition for Review under Rule 45 of the Rules of Court, raising the following:

Issues
 I

IS THE DISSOLUTION AND THE CONSEQUENT LIQUIDATION OF THE COMMON

PROPERTIES OF THE HUSBAND AND WIFE BY VIRTUE OF THE DECREE OF LEGAL
SEPARATION GOVERNED BY ARTICLE 125 (SIC) OF THE FAMILY CODE?

II

WHAT IS THE MEANING OF THE NET PROFITS EARNED BY THE CONJUGAL

PARTNERSHIP FOR PURPOSES OF EFFECTING THE FORFEITURE AUTHORIZED
UNDER ARTICLE 63 OF THE FAMILY CODE?

III

WHAT LAW GOVERNS THE PROPERTY RELATIONS BETWEEN THE HUSBAND AND
WIFE WHO GOT MARRIED IN 1977? CAN THE FAMILY CODE OF THE PHILIPPINES
BE GIVEN RETROACTIVE EFFECT FOR PURPOSES OF DETERMINING THE NET
PROFITS SUBJECT OF FORFEITURE AS A RESULT OF THE DECREE OF LEGAL
SEPARATION WITHOUT IMPAIRING VESTED RIGHTS ALREADY ACQUIRED UNDER
THE CIVIL CODE?

IV

WHAT PROPERTIES SHALL BE INCLUDED IN THE FORFEITURE OF THE SHARE OF

THE GUILTY SPOUSE IN THE NET CONJUGAL PARTNERSHIP AS A RESULT OF THE
ISSUANCE OF THE DECREE OF LEGAL SEPARATION?ix[23]

Our Ruling

While the petitioner has raised a number of issues on the applicability of certain laws, we
are well-aware that the respondents have called our attention to the fact that the Decision dated
October 10, 2005 has attained finality when the Motion for Clarification was filed.ix[24] Thus, we
are constrained to resolve first the issue of the finality of the Decision dated October 10, 2005
and subsequently discuss the matters that we can clarify.

The Decision dated October 10, 2005 has become

final and executory at the time the Motion for
Clarification was filed on July 7, 2006.

Section 3, Rule 41 of the Rules of Court provides:

Section 3. Period of ordinary appeal. - The appeal shall be taken within

fifteen (15) days from notice of the judgment or final order appealed from. Where
a record on appeal is required, the appellant shall file a notice of appeal and a
record on appeal within thirty (30) days from notice of the judgment or final order.

The period of appeal shall be interrupted by a timely motion for new trial
or reconsideration. No motion for extension of time to file a motion for new trial
or reconsideration shall be allowed.

In Neypes v. Court of Appeals,ix[25] we clarified that to standardize the appeal periods

provided in the Rules and to afford litigants fair opportunity to appeal their cases, we held that
it would be practical to allow a fresh period of 15 days within which to file the notice of appeal
in the RTC, counted from receipt of the order dismissing a motion for a new trial or motion for
reconsideration.ix[26]

In Neypes, we explained that the "fresh period rule" shall also apply to Rule 40 governing
appeals from the Municipal Trial Courts to the RTCs; Rule 42 on petitions for review from the
RTCs to the Court of Appeals (CA); Rule 43 on appeals from quasi-judicial agencies to the CA and
Rule 45 governing appeals by certiorari to the Supreme Court. We also said, The new rule aims
to regiment or make the appeal period uniform, to be counted from receipt of the order denying
the motion for new trial, motion for reconsideration (whether full or partial) or any final order or
resolution.ix[27] In other words, a party litigant may file his notice of appeal within a fresh 15-
day period from his receipt of the trial court's decision or final order denying his motion for new
trial or motion for reconsideration. Failure to avail of the fresh 15-day period from the denial of
the motion for reconsideration makes the decision or final order in question final and executory.

In the case at bar, the trial court rendered its Decision on October 10, 2005. The petitioner
neither filed a motion for reconsideration nor a notice of appeal. On December 16, 2005, or after
67 days had lapsed, the trial court issued an order granting the respondent's motion for
execution; and on February 10, 2006, or after 123 days had lapsed, the trial court issued a writ of
execution. Finally, when the writ had already been partially executed, the petitioner, on July 7,
2006 or after 270 days had lapsed, filed his Motion for Clarification on the definition of the net
profits earned. From the foregoing, the petitioner had clearly slept on his right to question the
RTCs Decision dated October 10, 2005. For 270 days, the petitioner never raised a single issue
until the decision had already been partially executed. Thus at the time the petitioner filed his
motion for clarification, the trial courts decision has become final and executory. A judgment
becomes final and executory when the reglementary period to appeal lapses and no appeal is
perfected within such period. Consequently, no court, not even this Court, can arrogate unto
itself appellate jurisdiction to review a case or modify a judgment that became final.ix[28]

The petitioner argues that the decision he is questioning is a void judgment. Being such,
the petitioner's thesis is that it can still be disturbed even after 270 days had lapsed from the
issuance of the decision to the filing of the motion for clarification. He said that a void judgment
is no judgment at all. It never attains finality and cannot be a source of any right nor any
obligation.ix[29] But what precisely is a void judgment in our jurisdiction? When does a judgment
becomes void?

A judgment is null and void when the court which rendered it had no power to grant the
relief or no jurisdiction over the subject matter or over the parties or both.ix[30] In other words,
a court, which does not have the power to decide a case or that has no jurisdiction over the
subject matter or the parties, will issue a void judgment or a coram non judice.ix[31]

The questioned judgment does not fall within the purview of a void judgment. For sure,
the trial court has jurisdiction over a case involving legal separation. Republic Act (R.A.) No. 8369
confers upon an RTC, designated as the Family Court of a city, the exclusive original jurisdiction
to hear and decide, among others, complaints or petitions relating to marital status and property
relations of the husband and wife or those living together.ix[32] The Rule on Legal
Separationix[33] provides that the petition [for legal separation] shall be filed in the Family Court
of the province or city where the petitioner or the respondent has been residing for at least six
months prior to the date of filing or in the case of a non-resident respondent, where he may be
found in the Philippines, at the election of the petitioner.ix[34] In the instant case, herein
respondent Rita is found to reside in Tungao, Butuan City for more than six months prior to the
date of filing of the petition; thus, the RTC, clearly has jurisdiction over the respondent's petition
below. Furthermore, the RTC also acquired jurisdiction over the persons of both parties,
considering that summons and a copy of the complaint with its annexes were served upon the
herein petitioner on December 14, 2000 and that the herein petitioner filed his Answer to the
Complaint on January 9, 2001.ix[35] Thus, without doubt, the RTC, which has rendered the
questioned judgment, has jurisdiction over the complaint and the persons of the parties.
 From the aforecited facts, the questioned October 10, 2005 judgment of the trial court is
clearly not void ab initio, since it was rendered within the ambit of the court's jurisdiction. Being
such, the same cannot anymore be disturbed, even if the modification is meant to correct what
may be considered an erroneous conclusion of fact or law.ix[36] In fact, we have ruled that for
[as] long as the public respondent acted with jurisdiction, any error committed by him or it in the
exercise thereof will amount to nothing more than an error of judgment which may be reviewed
or corrected only by appeal.ix[37] Granting without admitting that the RTC's judgment dated
October 10, 2005 was erroneous, the petitioner's remedy should be an appeal filed within the
reglementary period. Unfortunately, the petitioner failed to do this. He has already lost the
chance to question the trial court's decision, which has become immutable and unalterable.
What we can only do is to clarify the very question raised below and nothing more.

For our convenience, the following matters cannot anymore be disturbed since the
October 10, 2005 judgment has already become immutable and unalterable, to wit:

(a) The finding that the petitioner is the offending spouse since he cohabited with a
woman who is not his wife;ix[38]

(b) The trial court's grant of the petition for legal separation of respondent Rita;ix[39]

(c) The dissolution and liquidation of the conjugal partnership;ix[40]

 (d) The forfeiture of the petitioner's right to any share of the net profits earned by the
conjugal partnership;ix[41]

(e) The award to the innocent spouse of the minor children's custody;ix[42]

(f) The disqualification of the offending spouse from inheriting from the innocent spouse
by intestate succession;ix[43]

(g) The revocation of provisions in favor of the offending spouse made in the will of the
innocent spouse;ix[44]

(h) The holding that the property relation of the parties is conjugal partnership of gains
and pursuant to Article 116 of the Family Code, all properties acquired during the marriage,
whether acquired by one or both spouses, is presumed to be conjugal unless the contrary is
proved;ix[45]

(i) The finding that the spouses acquired their real and personal properties while they
were living together;ix[46]

(j) The list of properties which Rizal Commercial Banking Corporation (RCBC)
foreclosed;ix[47]
 (k) The list of the remaining properties of the couple which must be dissolved and
liquidated and the fact that respondent Rita was the one who took charge of the administration
of these properties;ix[48]

(l) The holding that the conjugal partnership shall be liable to matters included under
Article 121 of the Family Code and the conjugal liabilities totaling P503,862.10 shall be charged
to the income generated by these properties;ix[49]

(m) The fact that the trial court had no way of knowing whether the petitioner had
separate properties which can satisfy his share for the support of the family;ix[50]

(n) The holding that the applicable law in this case is Article 129(7);ix[51]

(o) The ruling that the remaining properties not subject to any encumbrance shall
therefore be divided equally between the petitioner and the respondent without prejudice to
the children's legitime;ix[52]

(p) The holding that the petitioner's share of the net profits earned by the conjugal
partnership is forfeited in favor of the common children;ix[53] and
 (q) The order to the petitioner to reimburse the respondents the sum of P19,000.00 as
attorney's fees and litigation expenses of P5,000.00.ix[54]

After discussing lengthily the immutability of the Decision dated October 10, 2005, we
will discuss the following issues for the enlightenment of the parties and the public at large.

Article 129 of the Family Code applies to the

present case since the parties' property relation is
governed by the system of relative community or
conjugal partnership of gains.

The petitioner claims that the court a quo is wrong when it applied Article 129 of the
Family Code, instead of Article 102. He confusingly argues that Article 102 applies because there
is no other provision under the Family Code which defines net profits earned subject of forfeiture
as a result of legal separation.

Offhand, the trial court's Decision dated October 10, 2005 held that Article 129(7) of the
Family Code applies in this case. We agree with the trial court's holding.

First, let us determine what governs the couple's property relation. From the record, we
can deduce that the petitioner and the respondent tied the marital knot on January 6, 1977. Since
at the time of the exchange of marital vows, the operative law was the Civil Code of the
Philippines (R.A. No. 386) and since they did not agree on a marriage settlement, the property
relations between the petitioner and the respondent is the system of relative community or
conjugal partnership of gains.ix[55] Article 119 of the Civil Code provides:

Art. 119. The future spouses may in the marriage settlements agree upon
absolute or relative community of property, or upon complete separation of
property, or upon any other regime. In the absence of marriage settlements, or
when the same are void, the system of relative community or conjugal partnership
of gains as established in this Code, shall govern the property relations between
husband and wife.

Thus, from the foregoing facts and law, it is clear that what governs the property relations
of the petitioner and of the respondent is conjugal partnership of gains. And under this property
relation, the husband and the wife place in a common fund the fruits of their separate property
and the income from their work or industry.ix[56] The husband and wife also own in common all
the property of the conjugal partnership of gains.ix[57]

Second, since at the time of the dissolution of the petitioner and the respondent's
marriage the operative law is already the Family Code, the same applies in the instant case and
the applicable law in so far as the liquidation of the conjugal partnership assets and liabilities is
concerned is Article 129 of the Family Code in relation to Article 63(2) of the Family Code. The
latter provision is applicable because according to Article 256 of the Family Code [t]his Code shall
have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other law.ix[58]
 Now, the petitioner asks: Was his vested right over half of the common properties of the
conjugal partnership violated when the trial court forfeited them in favor of his children pursuant
to Articles 63(2) and 129 of the Family Code?

We respond in the negative.

Indeed, the petitioner claims that his vested rights have been impaired, arguing: As earlier
adverted to, the petitioner acquired vested rights over half of the conjugal properties, the same
being owned in common by the spouses. If the provisions of the Family Code are to be given
retroactive application to the point of authorizing the forfeiture of the petitioner's share in the
net remainder of the conjugal partnership properties, the same impairs his rights acquired prior
to the effectivity of the Family Code.ix[59] In other words, the petitioner is saying that since the
property relations between the spouses is governed by the regime of Conjugal Partnership of
Gains under the Civil Code, the petitioner acquired vested rights over half of the properties of
the Conjugal Partnership of Gains, pursuant to Article 143 of the Civil Code, which provides: All
property of the conjugal partnership of gains is owned in common by the husband and wife.ix[60]
Thus, since he is one of the owners of the properties covered by the conjugal partnership of gains,
he has a vested right over half of the said properties, even after the promulgation of the Family
Code; and he insisted that no provision under the Family Code may deprive him of this vested
right by virtue of Article 256 of the Family Code which prohibits retroactive application of the
Family Code when it will prejudice a person's vested right.

However, the petitioner's claim of vested right is not one which is written on stone. In Go,
Jr. v. Court of Appeals,ix[61] we define and explained vested right in the following manner:
 A vested right is one whose existence, effectivity and extent do not depend
upon events foreign to the will of the holder, or to the exercise of which no
obstacle exists, and which is immediate and perfect in itself and not dependent
upon a contingency. The term vested right expresses the concept of present fixed
interest which, in right reason and natural justice, should be protected against
arbitrary State action, or an innately just and imperative right which enlightened
free society, sensitive to inherent and irrefragable individual rights, cannot deny.

To be vested, a right must have become a titlelegal or equitableto the

present or future enjoyment of property.ix[62] (Citations omitted)

In our en banc Resolution dated October 18, 2005 for ABAKADA Guro Party List Officer
Samson S. Alcantara, et al. v. The Hon. Executive Secretary Eduardo R. Ermita,ix[63] we also
explained:

The concept of vested right is a consequence of the constitutional

guaranty of due process that expresses a present fixed interest which in right
reason and natural justice is protected against arbitrary state action; it includes
not only legal or equitable title to the enforcement of a demand but also
exemptions from new obligations created after the right has become vested.
Rights are considered vested when the right to enjoyment is a present interest,
absolute, unconditional, and perfect or fixed and irrefutable.ix[64] (Emphasis and
underscoring supplied)

From the foregoing, it is clear that while one may not be deprived of his vested right, he
may lose the same if there is due process and such deprivation is founded in law and
jurisprudence.

In the present case, the petitioner was accorded his right to due process. First, he was
well-aware that the respondent prayed in her complaint that all of the conjugal properties be
awarded to her.ix[65] In fact, in his Answer, the petitioner prayed that the trial court divide the
community assets between the petitioner and the respondent as circumstances and evidence
warrant after the accounting and inventory of all the community properties of the parties.ix[66]
Second, when the Decision dated October 10, 2005 was promulgated, the petitioner never
questioned the trial court's ruling forfeiting what the trial court termed as net profits, pursuant
to Article 129(7) of the Family Code.ix[67] Thus, the petitioner cannot claim being deprived of his
right to due process.

Furthermore, we take note that the alleged deprivation of the petitioner's vested right is
one founded, not only in the provisions of the Family Code, but in Article 176 of the Civil Code.
This provision is like Articles 63 and 129 of the Family Code on the forfeiture of the guilty spouse's
share in the conjugal partnership profits. The said provision says:

Art. 176. In case of legal separation, the guilty spouse shall forfeit his or
her share of the conjugal partnership profits, which shall be awarded to the
children of both, and the children of the guilty spouse had by a prior marriage.
However, if the conjugal partnership property came mostly or entirely from the
work or industry, or from the wages and salaries, or from the fruits of the separate
property of the guilty spouse, this forfeiture shall not apply.

In case there are no children, the innocent spouse shall be entitled to all
the net profits.

From the foregoing, the petitioner's claim of a vested right has no basis considering that
even under Article 176 of the Civil Code, his share of the conjugal partnership profits may be
forfeited if he is the guilty party in a legal separation case. Thus, after trial and after the petitioner
was given the chance to present his evidence, the petitioner's vested right claim may in fact be
set aside under the Civil Code since the trial court found him the guilty party.

More, in Abalos v. Dr. Macatangay, Jr.,ix[68] we reiterated our long-standing ruling that:
 [P]rior to the liquidation of the conjugal partnership, the interest of each spouse
in the conjugal assets is inchoate, a mere expectancy, which constitutes neither a
legal nor an equitable estate, and does not ripen into title until it appears that
there are assets in the community as a result of the liquidation and settlement.
The interest of each spouse is limited to the net remainder or remanente liquido
(haber ganancial) resulting from the liquidation of the affairs of the partnership
after its dissolution. Thus, the right of the husband or wife to one-half of the
conjugal assets does not vest until the dissolution and liquidation of the conjugal
partnership, or after dissolution of the marriage, when it is finally determined that,
after settlement of conjugal obligations, there are net assets left which can be
divided between the spouses or their respective heirs.ix[69] (Citations omitted)

Finally, as earlier discussed, the trial court has already decided in its Decision dated
October 10, 2005 that the applicable law in this case is Article 129(7) of the Family Code.ix[70]
The petitioner did not file a motion for reconsideration nor a notice of appeal. Thus, the
petitioner is now precluded from questioning the trial court's decision since it has become final
and executory. The doctrine of immutability and unalterability of a final judgment prevents us
from disturbing the Decision dated October 10, 2005 because final and executory decisions can
no longer be reviewed nor reversed by this Court.ix[71]

From the above discussions, Article 129 of the Family Code clearly applies to the present
case since the parties' property relation is governed by the system of relative community or
conjugal partnership of gains and since the trial court's Decision has attained finality and
immutability.

The net profits of the conjugal partnership of gains

are all the fruits of the separate properties of the
spouses and the products of their labor and
industry.
 The petitioner inquires from us the meaning of net profits earned by the conjugal
partnership for purposes of effecting the forfeiture authorized under Article 63 of the Family
Code. He insists that since there is no other provision under the Family Code, which defines net
profits earned subject of forfeiture as a result of legal separation, then Article 102 of the Family
Code applies.

What does Article 102 of the Family Code say? Is the computation of net profits earned
in the conjugal partnership of gains the same with the computation of net profits earned in the
absolute community?

Now, we clarify.

First and foremost, we must distinguish between the applicable law as to the property
relations between the parties and the applicable law as to the definition of net profits. As earlier
discussed, Article 129 of the Family Code applies as to the property relations of the parties. In
other words, the computation and the succession of events will follow the provisions under
Article 129 of the said Code. Moreover, as to the definition of net profits, we cannot but refer to
Article 102(4) of the Family Code, since it expressly provides that for purposes of computing the
net profits subject to forfeiture under Article 43, No. (2) and Article 63, No. (2), Article 102(4)
applies. In this provision, net profits shall be the increase in value between the market value of
the community property at the time of the celebration of the marriage and the market value at
the time of its dissolution.ix[72] Thus, without any iota of doubt, Article 102(4) applies to both
the dissolution of the absolute community regime under Article 102 of the Family Code, and to
the dissolution of the conjugal partnership regime under Article 129 of the Family Code. Where
lies the difference? As earlier shown, the difference lies in the processes used under the
dissolution of the absolute community regime under Article 102 of the Family Code, and in the
processes used under the dissolution of the conjugal partnership regime under Article 129 of the
Family Code.

Let us now discuss the difference in the processes between the absolute community
regime and the conjugal partnership regime.

On Absolute Community Regime:

When a couple enters into a regime of absolute community, the husband and the wife
becomes joint owners of all the properties of the marriage. Whatever property each spouse
brings into the marriage, and those acquired during the marriage (except those excluded under
Article 92 of the Family Code) form the common mass of the couple's properties. And when the
couple's marriage or community is dissolved, that common mass is divided between the spouses,
or their respective heirs, equally or in the proportion the parties have established, irrespective of
the value each one may have originally owned.ix[73]

Under Article 102 of the Family Code, upon dissolution of marriage, an inventory is
prepared, listing separately all the properties of the absolute community and the exclusive
properties of each; then the debts and obligations of the absolute community are paid out of the
absolute community's assets and if the community's properties are insufficient, the separate
properties of each of the couple will be solidarily liable for the unpaid balance. Whatever is left
of the separate properties will be delivered to each of them. The net remainder of the absolute
community is its net assets, which shall be divided between the husband and the wife; and for
purposes of computing the net profits subject to forfeiture, said profits shall be the increase in
value between the market value of the community property at the time of the celebration of the
marriage and the market value at the time of its dissolution.ix[74]

Applying Article 102 of the Family Code, the net profits requires that we first find the
market value of the properties at the time of the community's dissolution. From the totality of
the market value of all the properties, we subtract the debts and obligations of the absolute
community and this result to the net assets or net remainder of the properties of the absolute
community, from which we deduct the market value of the properties at the time of marriage,
which then results to the net profits.ix[75]

Granting without admitting that Article 102 applies to the instant case, let us see what
will happen if we apply Article 102:

(a) According to the trial court's finding of facts, both husband and wife have no separate
properties, thus, the remaining properties in the list above are all part of the absolute
community. And its market value at the time of the dissolution of the absolute community
constitutes the market value at dissolution.

(b) Thus, when the petitioner and the respondent finally were legally separated, all the
properties which remained will be liable for the debts and obligations of the community. Such
debts and obligations will be subtracted from the market value at dissolution.
 (c) What remains after the debts and obligations have been paid from the total assets of
the absolute community constitutes the net remainder or net asset. And from such net
asset/remainder of the petitioner and respondent's remaining properties, the market value at
the time of marriage will be subtracted and the resulting totality constitutes the net profits.

(d) Since both husband and wife have no separate properties, and nothing would be
returned to each of them, what will be divided equally between them is simply the net profits.
However, in the Decision dated October 10, 2005, the trial court forfeited the half-share of the
petitioner in favor of his children. Thus, if we use Article 102 in the instant case (which should
not be the case), nothing is left to the petitioner since both parties entered into their marriage
without bringing with them any property.

On Conjugal Partnership Regime:

Before we go into our disquisition on the Conjugal Partnership Regime, we make it clear
that Article 102(4) of the Family Code applies in the instant case for purposes only of defining
net profit. As earlier explained, the definition of net profits in Article 102(4) of the Family Code
applies to both the absolute community regime and conjugal partnership regime as provided for
under Article 63, No. (2) of the Family Code, relative to the provisions on Legal Separation.

Now, when a couple enters into a regime of conjugal partnership of gains under Article
142 of the Civil Code, the husband and the wife place in common fund the fruits of their separate
property and income from their work or industry, and divide equally, upon the dissolution of the
marriage or of the partnership, the net gains or benefits obtained indiscriminately by either
spouse during the marriage.ix[76] From the foregoing provision, each of the couple has his and
her own property and debts. The law does not intend to effect a mixture or merger of those debts
or properties between the spouses. Rather, it establishes a complete separation of capitals.ix[77]

Considering that the couple's marriage has been dissolved under the Family Code, Article
129 of the same Code applies in the liquidation of the couple's properties in the event that the
conjugal partnership of gains is dissolved, to wit:

Art. 129. Upon the dissolution of the conjugal partnership regime, the
following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of

the conjugal partnership and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal

debts and obligations of either spouse shall be credited to the conjugal
partnership as an asset thereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive funds
in the acquisition of property or for the value of his or her exclusive property, the
ownership of which has been vested by law in the conjugal partnership.

(4) The debts and obligations of the conjugal partnership shall be paid out
of the conjugal assets. In case of insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their separate properties, in
accordance with the provisions of paragraph (2) of Article 121.
(5) Whatever remains of the exclusive properties of the spouses shall
thereafter be delivered to each of them.

(6) Unless the owner had been indemnified from whatever source, the loss
or deterioration of movables used for the benefit of the family, belonging to either
spouse, even due to fortuitous event, shall be paid to said spouse from the
conjugal funds, if any.
 (7) The net remainder of the conjugal partnership properties shall
constitute the profits, which shall be divided equally between husband and wife,
unless a different proportion or division was agreed upon in the marriage
settlements or unless there has been a voluntary waiver or forfeiture of such share
as provided in this Code.

(8) The presumptive legitimes of the common children shall be delivered

upon the partition in accordance with Article 51.

(9) In the partition of the properties, the conjugal dwelling and the lot on
which it is situated shall, unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise. In case there is no
such majority, the court shall decide, taking into consideration the best interests
of said children.

In the normal course of events, the following are the steps in the liquidation of the
properties of the spouses:

(a) An inventory of all the actual properties shall be made, separately listing the couple's
conjugal properties and their separate properties.ix[78] In the instant case, the trial court found
that the couple has no separate properties when they married.ix[79] Rather, the trial court
identified the following conjugal properties, to wit:

1. coffee mill in Balongagan, Las Nieves, Agusan del Norte;

2. coffee mill in Durian, Las Nieves, Agusan del Norte;

3. corn mill in Casiklan, Las Nieves, Agusan del Norte;

4. coffee mill in Esperanza, Agusan del Sur;

 5. a parcel of land with an area of 1,200 square meters located in Tungao, Butuan
City;

6. a parcel of agricultural land with an area of 5 hectares located in Manila de

Bugabos, Butuan City;

7. a parcel of land with an area of 84 square meters located in Tungao, Butuan

City;

8. Bashier Bon Factory located in Tungao, Butuan City.ix[80]

(b) Ordinarily, the benefit received by a spouse from the conjugal partnership during the
marriage is returned in equal amount to the assets of the conjugal partnership;ix[81] and if the
community is enriched at the expense of the separate properties of either spouse, a restitution
of the value of such properties to their respective owners shall be made.ix[82]

(c) Subsequently, the couple's conjugal partnership shall pay the debts of the conjugal
partnership; while the debts and obligation of each of the spouses shall be paid from their
respective separate properties. But if the conjugal partnership is not sufficient to pay all its debts
and obligations, the spouses with their separate properties shall be solidarily liable.ix[83]

(d) Now, what remains of the separate or exclusive properties of the husband and of the
wife shall be returned to each of them.ix[84] In the instant case, since it was already established
by the trial court that the spouses have no separate properties,ix[85] there is nothing to return
to any of them. The listed properties above are considered part of the conjugal partnership. Thus,
ordinarily, what remains in the above-listed properties should be divided equally between the
spouses and/or their respective heirs.ix[86] However, since the trial court found the petitioner
the guilty party, his share from the net profits of the conjugal partnership is forfeited in favor of
the common children, pursuant to Article 63(2) of the Family Code. Again, lest we be confused,
like in the absolute community regime, nothing will be returned to the guilty party in the conjugal
partnership regime, because there is no separate property which may be accounted for in the
guilty party's favor.

In the discussions above, we have seen that in both instances, the petitioner is not
entitled to any property at all. Thus, we cannot but uphold the Decision dated October 10, 2005
of the trial court. However, we must clarify, as we already did above, the Order dated January 8,
2007.

WHEREFORE, the Decision dated October 10, 2005 of the Regional Trial Court, Branch 1
of Butuan City is AFFIRMED. Acting on the Motion for Clarification dated July 7, 2006 in the
Regional Trial Court, the Order dated January 8, 2007 of the Regional Trial Court is hereby
CLARIFIED in accordance with the above discussions.

SO ORDERED.

BIENVENIDO L. REYES

Associate Justice

WE CONCUR:
 ANTONIO T. CARPIO

Senior Associate Justice

Chairperson, Second Division

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

Sec. 9, 10 ,11, 18, 21

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 193960 January 7, 2013

KARLO ANGELO DABALOS y SAN DIEGO, Petitioner,

vs.
REGIONAL TRIAL COURT,BRANCH 59, ANGELES CITY (PAMPANGA), REPRESENTED BY ITS
PRESIDING JUDGE MA. ANGELICA T. PARAS-QUIAMBAO; THE OFFICE OF THE CITY
PROSECUTOR, ANGELES CITY (PAMPANGA); AND ABC,1 Respondents.

DECISION

PERLAS-BERNABE, J.:

The Court will not read into Republic Act (RA) No. 9262 a provision that would render it
toothless in the pursuit of the declared policy of the State to protect women and children from
violence and threats to their personal safety and security.

Before the Court is a petition for certiorari and prohibition assailing the Orders dated
September 13, 20102 and October 5, 20103 of the Regional Trial Court (RTC) of Angeles City,
Branch 59 in Criminal Case No. 09-5210 which denied petitioner’s Motion for Judicial
Determination of Probable Cause with Motion to Quash the Information.

The Facts

Petitioner was charged with violation of Section 5(a) of RA 9262 before the RTC of Angeles City,
Branch 59, in an Information which states:

That on or about the 13th day of July, 2009, in the City of Angeles, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being then the boyfriend of the
complainant, x x x did then and there willfully, unlawfully and feloniously use personal violence
on the complainant, by pulling her hair, punching complainant’s back, shoulder and left eye,
thereby demeaning and degrading the complainant’s intrinsic worth and dignity as a human
being, in violation of Section 5(a) of the Republic Act 9262.4

After examining the supporting evidence, the RTC found probable cause and consequently,
issued a warrant of arrest against petitioner on November 19, 2009. The latter posted a cash
bond for his provisional liberty and on August 12, 2010, filed a Motion for Judicial
Determination of Probable Cause with Motion to Quash the Information. Petitioner averred
that at the time of the alleged incident on July 13, 2009, he was no longer in a dating
relationship with private respondent; hence, RA 9262 was inapplicable.

In her affidavit, private respondent admitted that her relationship with petitioner had ended
prior to the subject incident. She narrated that on July 13, 2009, she sought payment of the
money she had lent to petitioner but the latter could not pay. She then inquired from petitioner
if he was responsible for spreading rumors about her which he admitted. Thereupon, private
respondent slapped petitioner causing the latter to inflict on her the physical injuries alleged in
the Information.

The RTC Ruling

The RTC denied petitioner’s motion. It did not consider material the fact that the parties’ dating
relationship had ceased prior to the incident, ratiocinating that since the parties had admitted a
prior dating relationship, the infliction of slight physical injuries constituted an act of violence
against women and their children as defined in Sec. 3(a) of RA 9262.

Issues

Hence, the instant petition raising the following issues: 1) whether the RTC has jurisdiction over
the offense; 2) whether RA 9262 should be construed in a manner that will favor the accused;
and 3) whether the Information alleging a fact contrary to what has been admitted should be
quashed.

The Court’s Ruling

The petition has no merit.

Petitioner insists that the act which resulted in physical injuries to private respondent is not
covered by RA 9262 because its proximate cause was not their dating relationship. Instead, he
claims that the offense committed was only slight physical injuries under the Revised Penal
Code which falls under the jurisdiction of the Municipal Trial Court.

The Court is not persuaded.

Sec. 3(a) of RA 9262 reads:

SEC. 3. Definition of Terms.- As used in this Act, (a) "Violence against women and their children"
refers to any act or a series of acts committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary deprivation of liberty. x x x.
The law is broad in scope but specifies two limiting qualifications for any act or series of acts to
be considered as a crime of violence against women through physical harm, namely: 1) it is
committed against a woman or her child and the woman is the offender’s wife, former wife, or
with whom he has or had sexual or dating relationship or with whom he has a common child;
and 2) it results in or is likely to result in physical harm or suffering.

In Ang v. Court of Appeals,5 the Court enumerated the elements of the crime of violence against
women through harassment, to wit:

1. The offender has or had a sexual or dating relationship with the offended woman;

2. The offender, by himself or through another, commits an act or series of acts of

harassment against the woman; and

3. The harassment alarms or causes substantial emotional or psychological distress to

her.6

Notably, while it is required that the offender has or had a sexual or dating relationship with
the offended woman, for RA 9262 to be applicable, it is not indispensable that the act of
violence be a consequence of such relationship. Nowhere in the law can such limitation be
inferred. Hence, applying the rule on statutory construction that when the law does not
distinguish, neither should the courts, then, clearly, the punishable acts refer to all acts of
violence against women with whom the offender has or had a sexual or dating relationship. As
correctly ruled by the RTC, it is immaterial whether the relationship had ceased for as long as
there is sufficient evidence showing the past or present existence of such relationship between
the offender and the victim when the physical harm was committed. Consequently, the Court
cannot depart from the parallelism in Ang and give credence to petitioner's assertion that the
act of violence should be due to the sexual or dating relationship.

Neither can the Court construe the statute in favor of petitioner using the rule of lenity 7
because there is no ambiguity in RA 9262 that would necessitate any construction. While the
degree of physical harm under RA 9262 and Article 2668 of the Revised Penal Code are the
same, there is sufficient justification for prescribing a higher penalty for the former. Clearly, the
legislative intent is to purposely impose a more severe sanction on the offenders whose violent
act/s physically harm women with whom they have or had a sexual or dating relationship,
and/or their children with the end in view of promoting the protection of women and children.

Accordingly, the Information having sufficiently alleged the necessary elements of the crime,
such as: a dating relationship between the petitioner and the private respondent; the act of
violence committed by the petitioner; and the resulting physical harm to private respondent,
the offense is covered by RA 9262 which falls under the jurisdiction of the RTC in accordance
with Sec. 7 of the said law which reads:
SEC. 7. Venue – The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In
the absence of such court in the place where the offense was committed, the case shall be filed
in the Regional Trial Court where the crime or any of its elements was committed at the option
of the complainant.

Finally, the Court finds the Order9 of the RTC, giving the prosecutor a period of two (2) days to
amend the Information to reflect the cessation of the dating relationship between the
petitioner and the offended party, to be in accord with Sec. 4 of Rule 117 of the Rules of Court,
to wit:

SEC. 4. Amendment of complaint or information.- If the motion to quash is based on an alleged

defect of the complaint or information which can be cured by amendment, the court shall order
that an amendment be made.1âwphi1

Furthermore, Sec. 14 of Rule 110 of the Rules of Court provides that an information may be
amended, in form or in substance, without leave of court, at any time before the accused
enters his plea. In the present case, the accused petitioner has not yet been arraigned, hence,
the RTC was correct in directing the amendment of the Information and in denying the motion
to quash the same.

WHEREFORE, the petition is DISMISSED. The Orders dated September 13, 2010 and October 5,
2010 of the Regional Trial Court ( RTC) of Angeles City, Branch 59 in Criminal Case No. 09-5210
are AF.FI RM ED. The Temporary Restraining Order issued by the Court is LIFTED and the RTC is
directed to continue with the proceedings in Criminal Case No. 09-5210.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D.BRION MARIANO C. DELCASTILLO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice