G.R. No.

L-36142 March 31, 1973

JOSUE JAVELLANA, petitioner,

vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE,
THE SECRETARY OF JUSTICE AND THE SECRETARY OF
FINANCE, respondents.

G.R. No. L-36164 March 31, 1973

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL

CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA AND LORENZO M.
TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE
SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE
SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE
BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL
COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE
COMMISSIONER OF CIVIL SERVICE, respondents.

G.R. No. L-36165 March 31, 1973.

GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,

SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADA-
KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN
PONCE ENRILE, in his capacity as Secretary of National Defense;
General ROMEO ESPINO, in his capacity as Chief of Staff of the
Armed Forces of the Philippines; TANCIO E. CASTAÑEDA, in his
capacity as Secretary General Services; Senator GIL J. PUYAT, in his
capacity as President of the Senate; and Senator JOSE ROY, his
capacity, as President Pro Tempore of the of the Senate, respondents.

G.R. No. L-36236 March 31, 1973

EDDIE B. MONTECLARO, [personally and in his capacity as President

of the National Press Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC
INFORMATION, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER
& THE NATIONAL TREASURER, respondents.

G.R. No. L-36283 March 31, 1973

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO

ASODISEN, JR., and RAUL M. GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE
SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET
COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents.

Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.

Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for
petitioners Gerardo Roxas, et al.

Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.

Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.

Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.

Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V.

Mendoza and Solicitor Reynato S. Puno for other respondents.

RESOLUTION

CONCEPCION, C.J.:

The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925, L-
35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer
collectively as the plebiscite cases.

Background of the Plebiscite Cases.

The factual setting thereof is set forth in the decision therein rendered, from
which We quote:

On March 16, 1967, Congress of the Philippines passed Resolution No. 2,

which was amended by Resolution No. 4 of said body, adopted on June 17,
1969, calling a Convention to propose amendments to the Constitution of the
Philippines. Said Resolution No. 2, as amended, was implemented by
Republic Act No. 6132, approved on August 24, 1970, pursuant to the
provisions of which the election of delegates to said Convention was held on
November 10, 1970, and the 1971 Constitutional Convention began to
perform its functions on June 1, 1971. While the Convention was in session
on September 21, 1972, the President issued Proclamation No. 1081 placing
the entire Philippines under Martial Law. On November 29, 1972, the
Convention approved its Proposed Constitution of the Republic of the
Philippines. The next day, November 30, 1972, the President of the
Philippines issued Presidential Decree No. 73, "submitting to the Filipino
people for ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and
appropriating funds therefor," as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on January 15, 1973.

Soon after, or on December 7, 1972, Charito Planas filed, with this Court,
Case G.R. No. L-35925, against the Commission on Elections, the Treasurer of
the Philippines and the Auditor General, to enjoin said "respondents or their
agents from implementing Presidential Decree No. 73, in any manner, until
further orders of the Court," upon the grounds, inter alia, that said
Presidential Decree "has no force and effect as law because the calling ... of
such plebiscite, the setting of guidelines for the conduct of the same, the
prescription of the ballots to be used and the question to be answered by the
voters, and the appropriation of public funds for the purpose, are, by the
Constitution, lodged exclusively in Congress ...," and "there is no proper
submission to the people of said Proposed Constitution set for January 15,
1973, there being no freedom of speech, press and assembly, and there
being no sufficient time to inform the people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C.

Sanidad against the Commission on Elections (Case G.R. No. L- 35929) on
December 11, 1972, by Gerardo Roxas, et al., against the Commission on
Elections, the Director of Printing, the National Treasurer and the Auditor
General (Case G.R. L-35940), by Eddie B. Monteclaro against the Commission
on Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and
by Sedfrey Ordoñez, et al. against the National Treasurer and the
Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by
Vidal Tan, et al., against the Commission on Elections, the Treasurer of the
Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-
35948) and by Jose W. Diokno and Benigno S. Aquino against the
Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by
Jacinto Jimenez against the Commission on Elections, the Auditor General,
the Treasurer of the Philippines and the Director of the Bureau of Printing
(Case G.R. No. L-35961), and by Raul M. Gonzales against the Commission on
Elections, the Budget Commissioner, the National Treasurer and the Auditor
General (Case G.R. No. L-35965); and on December 16, 1972, by Ernesto C.
Hidalgo against the Commission on Elections, the Secretary of Education, the
National Treasurer and the Auditor General (Case G.R. No. L-35979).

In all these cases, except the last (G.R. No. L-35979), the respondents were
required to file their answers "not later than 12:00 (o'clock) noon of
Saturday, December 16, 1972." Said cases were, also, set for hearing and
partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was
continued on December 19, 1972. By agreement of the parties, the
aforementioned last case — G.R. No. L-35979 — was, also, heard, jointly with
the others, on December 19, 1972. At the conclusion of the hearing, on that
date, the parties in all of the aforementioned cases were given a short period
of time within which "to submit their notes on the points they desire to
stress." Said notes were filed on different dates, between December 21,
1972, and January 4, 1973.

Meanwhile, or on December 17, 1972, the President had issued an order

temporarily suspending the effects of Proclamation No. 1081, for the purpose
of free and open debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite for the ratification
or rejection of the Proposed Constitution. No formal action to this effect was
taken until January 7, 1973, when General Order No. 20 was issued, directing
"that the plebiscite scheduled to be held on January 15, 1978, be postponed
until further notice." Said General Order No. 20, moreover, "suspended in the
meantime" the "order of December 17, 1972, temporarily suspending the
effects of Proclamation No. 1081 for purposes of free and open debate on the
proposed Constitution."

In view of these events relative to the postponement of the aforementioned

plebiscite, the Court deemed it fit to refrain, for the time being, from
deciding the aforementioned cases, for neither the date nor the conditions
under which said plebiscite would be held were known or announced
officially. Then, again, Congress was, pursuant to the 1935 Constitution,
scheduled to meet in regular session on January 22, 1973, and since the
main objection to Presidential Decree No. 73 was that the President does not
have the legislative authority to call a plebiscite and appropriate funds
therefor, which Congress unquestionably could do, particularly in view of the
formal postponement of the plebiscite by the President — reportedly after
consultation with, among others, the leaders of Congress and the
Commission on Elections — the Court deemed it more imperative to defer its
final action on these cases.

"In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-
35948 filed an "urgent motion," praying that said case be decided "as soon
as possible, preferably not later than January 15, 1973." It was alleged in
said motion, inter alia:

"6. That the President subsequently announced the issuance of Presidential

Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted
on certain public questions [Bulletin Today, January 1, 1973];

"7. That thereafter it was later announced that "the Assemblies will be asked
if they favor or oppose —

[1] The New Society;

[2] Reforms instituted under Martial Law;

[3] The holding of a plebiscite on the proposed new Constitution and when
(the tentative new dates given following the postponement of the plebiscite
from the original date of January 15 are February 19 and March 5);

[4] The opening of the regular session slated on January 22 in accordance

with the existing Constitution despite Martial Law." [Bulletin Today, January 3,
1973.]

"8. That it was later reported that the following are to be the forms of the
questions to be asked to the Citizens Assemblies: —

[1] Do you approve of the New Society?

[2] Do you approve of the reform measures under martial law?

[3] Do you think that Congress should meet again in regular session?

[4] How soon would you like the plebiscite on the new Constitution to be
held? [Bulletin Today, January 5, 1973].

"9. That the voting by the so-called Citizens Assemblies was announced to
take place during the period from January 10 to January 15, 1973;

"10. That on January 10, 1973, it was reported that on more question would
be added to the four (4) question previously announced, and that the forms
of the question would be as follows: —
[1] Do you like the New Society?

[2] Do you like the reforms under martial law?

[3] Do you like Congress again to hold sessions?

[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional
question.]

"11. That on January 11, 1973, it was reported that six (6) more questions
would be submitted to the so-called Citizens Assemblies: —

[1] Do you approve of the citizens assemblies as the base of popular

government to decide issues of national interests?

[2] Do you approve of the new Constitution?

[3] Do you want a plebiscite to be called to ratify the new Constitution?

[4] Do you want the elections to be held in November, 1973 in accordance

with the provisions of the 1935 Constitution?

[5] If the elections would not be held, when do you want the next elections to
be called?

[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973;
emphasis supplied]

"12. That according to reports, the returns with respect to the six (6)
additional questions quoted above will be on a form similar or identical to
Annex "A" hereof;

"13. That attached to page 1 of Annex "A" is another page, which we marked
as Annex "A-1", and which reads: —

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be

convened at all, it should not be done so until after at least seven (7) years
from the approval of the New Constitution by the Citizens Assemblies.
QUESTION No. 3

plebiscite on the New Constitution.ℒαwρhi ৷

The vote of the Citizens Assemblies should already be considered the

If the Citizens Assemblies approve of the New Constitution, then the new
Constitution should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of
so many debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will be

enough for stability to be established in the country, for reforms to take root
and normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to

exercise his powers with more authority. We want him to be strong and firm
so that he can accomplish all his reform programs and establish normalcy in
the country. If all other measures fail, we want President Marcos to declare a
revolutionary government along the lines of the new Constitution without the
ad interim Assembly."

"Attention is respectfully invited to the comments on "Question No. 3," which

reads: —

QUESTION No. 3

The vote of the Citizens Assemblies should be considered the plebiscite on

the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new
Constitution should be deemed ratified.

This, we are afraid, and therefore allege, is pregnant with ominous

possibilities.

14. That, in the meantime, speaking on television and over the radio, on
January 7, 1973, the President announced that the limited freedom of debate
on the proposed Constitution was being withdrawn and that the proclamation
of martial law and the orders and decrees issued thereunder would
thenceforth strictly be enforced [Daily Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that the
question added in the last list of questions to be asked to the Citizens
Assemblies, namely: —

Do you approve of the New Constitution? —

in relation to the question following it: —

Do you still want a plebiscite to be called to ratify the new Constitution?" —

would be an attempt to by-pass and short-circuit this Honorable Court before

which the question of the validity of the plebiscite on the proposed
Constitution is now pending;

"16. That petitioners have reason to fear, and therefore allege, that if an
affirmative answer to the two questions just referred to will be reported then
this Honorable Court and the entire nation will be confronted with a fait
accompli which has been attained in a highly unconstitutional and
undemocratic manner;

"17. That the fait accompli would consist in the supposed expression of the
people approving the proposed Constitution;

"18. That, if such event would happen, then the case before this Honorable
Court could, to all intents and purposes, become moot because, petitioners
fear, and they therefore allege, that on the basis of such supposed
expression of the will of the people through the Citizens Assemblies, it would
be announced that the proposed Constitution, with all its defects, both
congenital and otherwise, has been ratified;

"19. That, in such a situation the Philippines will be facing a real crisis and
there is likelihood of confusion if not chaos, because then, the people and
their officials will not know which Constitution is in force.

"20. That the crisis mentioned above can only be avoided if this Honorable
Court will immediately decide and announce its decision on the present
petition;

"21. That with the withdrawal by the President of the limited freedom of
discussion on the proposed Constitution which was given to the people
pursuant to Sec. 3 of Presidential Decree No. 73, the opposition of
respondents to petitioners' prayer at the plebiscite be prohibited has now
collapsed and that a free plebiscite can no longer be held."
At about the same time, a similar prayer was made in a "manifestation" filed
by the petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on
Elections, et al.," and L-35942, "Sedfrey A. Ordoñez, et al. v. The National
Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a
resolution requiring the respondents in said three (3) cases to comment on
said "urgent motion" and "manifestation," "not later than Tuesday noon,
January 16, 1973." Prior thereto, or on January 15, 1973, shortly before noon,
the petitioners in said Case G.R. No. L-35948 riled a "supplemental motion
for issuance of restraining order and inclusion of additional respondents,"
praying —

"... that a restraining order be issued enjoining and restraining respondent

Commission on Elections, as well as the Department of Local Governments
and its head, Secretary Jose Roño; the Department of Agrarian Reforms and
its head, Secretary Conrado Estrella; the National Ratification Coordinating
Committee and its Chairman, Guillermo de Vega; their deputies, subordinates
and substitutes, and all other officials and persons who may be assigned
such task, from collecting, certifying, and announcing and reporting to the
President or other officials concerned, the so-called Citizens' Assemblies
referendum results allegedly obtained when they were supposed to have met
during the period comprised between January 10 and January 15, 1973, on
the two questions quoted in paragraph 1 of this Supplemental Urgent
Motion."

In support of this prayer, it was alleged —

"3. That petitioners are now before this Honorable Court in order to ask
further that this Honorable Court issue a restraining order enjoining herein
respondents, particularly respondent Commission on Elections as well as the
Department of Local Governments and its head, Secretary Jose Roño; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella;
the National Ratification Coordinating Committee and its Chairman,
Guillermo de Vega; and their deputies, subordinates and/or substitutes, from
collecting, certifying, announcing and reporting to the President the
supposed Citizens' Assemblies referendum results allegedly obtained when
they were supposed to have met during the period between January 10 and
January 15, 1973, particularly on the two questions quoted in paragraph 1 of
this Supplemental Urgent Motion;
"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null
and void particularly insofar as such proceedings are being made the basis of
a supposed consensus for the ratification of the proposed Constitution
because: —

[a] The elections contemplated in the Constitution, Article XV, at which the
proposed constitutional amendments are to be submitted for ratification, are
elections at which only qualified and duly registered voters are permitted to
vote, whereas, the so called Citizens' Assemblies were participated in by
persons 15 years of age and older, regardless of qualifications or lack
thereof, as prescribed in the Election Code;

[b] Elections or plebiscites for the ratification of constitutional amendments

contemplated in Article XV of the Constitution have provisions for the secrecy
of choice and of vote, which is one of the safeguards of freedom of action,
but votes in the Citizens' Assemblies were open and were cast by raising
hands;

[c] The Election Code makes ample provisions for free, orderly and honest
elections, and such provisions are a minimum requirement for elections or
plebiscites for the ratification of constitutional amendments, but there were
no similar provisions to guide and regulate proceedings of the so called
Citizens' Assemblies;

[d] It is seriously to be doubted that, for lack of material time, more than a
handful of the so called Citizens' Assemblies have been actually formed,
because the mechanics of their organization were still being discussed a day
or so before the day they were supposed to begin functioning: —

"Provincial governors and city and municipal mayors had been meeting with
barrio captains and community leaders since last Monday [January 8, 1973)
to thresh out the mechanics in the formation of the Citizens Assemblies and
the topics for discussion." [Bulletin Today, January 10, 1973]

"It should be recalled that the Citizens' Assemblies were ordered formed only
at the beginning of the year [Daily Express, January 1, 1973], and
considering the lack of experience of the local organizers of said assemblies,
as well as the absence of sufficient guidelines for organization, it is too much
to believe that such assemblies could be organized at such a short notice.

"5. That for lack of material time, the appropriate amended petition to
include the additional officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion could not be completed
because, as noted in the Urgent Motion of January 12, 1973, the submission
of the proposed Constitution to the Citizens' Assemblies was not made
known to the public until January 11, 1973. But be that as it may, the said
additional officials and agencies may be properly included in the petition at
bar because: —

[a] The herein petitioners have prayed in their petition for the annulment not

proclamation, order or instruction.ℒαwρhi ৷

only of Presidential Decree No. 73, but also of "any similar decree,

so that Presidential Decree No. 86, insofar at least as it attempts to submit

the proposed Constitution to a plebiscite by the so-called Citizens'
Assemblies, is properly in issue in this case, and those who enforce,
implement, or carry out the said Presidential Decree No. 86. and the
instructions incidental thereto clearly fall within the scope of this petition;

[b] In their petition, petitioners sought the issuance of a writ of preliminary

injunction restraining not only the respondents named in the petition but also
their "agents" from implementing not only Presidential Decree No. 73, but
also "any other similar decree, order, instruction, or proclamation in relation
to the holding of a plebiscite on January 15, 1973 for the purpose of
submitting to the Filipino people for their ratification or rejection the 1972
Draft or proposed Constitution approved by the Constitutional Convention on
November 30, 1972"; and finally,

[c] Petitioners prayed for such other relief which may be just and equitable.
[p. 39, Petition].

"Therefore, viewing the case from all angles, the officials and government
agencies mentioned in paragraph 3 of this Supplemental Urgent Motion, can
lawfully be reached by the processes of this Honorable Court by reason of
this petition, considering, furthermore, that the Commission on Elections has
under our laws the power, among others, of: —

(a) Direct and immediate supervision and control over national, provincial,
city, municipal and municipal district officials required by law to perform
duties relative to the conduct of elections on matters pertaining to the
enforcement of the provisions of this Code ..." [Election Code of 1971, Sec.
3].

"6. That unless the petition at bar is decided immediately and the
Commission on Elections, together with the officials and government
agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are
restrained or enjoined from collecting, certifying, reporting or announcing to
the President the results of the alleged voting of the so-called Citizens'
Assemblies, irreparable damage will be caused to the Republic of the
Philippines, the Filipino people, the cause of freedom an democracy, and the
petitioners herein because:

[a] After the result of the supposed voting on the questions mentioned in
paragraph 1 hereof shall have been announced, a conflict will arise between
those who maintain that the 1935 Constitution is still in force, on the one
hand, and those who will maintain that it has been superseded by the
proposed Constitution, on the other, thereby creating confusion, if not chaos;

[b] Even the jurisdiction of this Court will be subject to serious attack
because the advocates of the theory that the proposed Constitution has been
ratified by reason of the announcement of the results of the proceedings of
the so-called Citizens' Assemblies will argue that, General Order No. 3, which
shall also be deemed ratified pursuant to the Transitory Provisions of the
proposed Constitution, has placed Presidential Decree Nos. 73 and 86
beyond the reach and jurisdiction of this Honorable Court."

On the same date — January 15, 1973 — the Court passed a resolution
requiring the respondents in said case G.R. No. L-35948 to file "file an answer
to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and
setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the
case was being heard, on the date last mentioned, at noontime, the
Secretary of Justice called on the writer of this opinion and said that, upon
instructions of the President, he (the Secretary of Justice) was delivering to
him (the writer) a copy of Proclamation No. 1102, which had just been signed
by the President. Thereupon, the writer returned to the Session Hall and
announced to the Court, the parties in G.R. No. L-35948 — inasmuch as the
hearing in connection therewith was still going on — and the public there
present that the President had, according to information conveyed by the
Secretary of Justice, signed said Proclamation No. 1102, earlier that morning.
Thereupon, the writer read Proclamation No. 1102 which is of the following
tenor:

"BY THE PRESIDENT OF THE PHILIPPINES

"PROCLAMATION NO. 1102

"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE

CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;

"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and

in districts/wards in chartered cities pursuant to Presidential Decree No. 86,
dated December 31, 1972, composed of all persons who are residents of the
barrio, district or ward for at least six months, fifteen years of age or over,
citizens of the Philippines and who are registered in the list of Citizen
Assembly members kept by the barrio, district or ward secretary;

"WHEREAS, the said Citizens Assemblies were established precisely to

broaden the base of citizen participation in the democratic process and to
afford ample opportunity for the citizenry to express their views on important
national issues;

"WHEREAS, responding to the clamor of the people and pursuant to

Presidential Decree No. 86-A, dated January 5, 1973, the following questions
were posed before the Citizens Assemblies or Barangays: Do you approve of
the New Constitution? Do you still want a plebiscite to be called to ratify the
new Constitution?

"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred

sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies)
voted for the adoption of the proposed Constitution, as against seven
hundred forty-three thousand eight hundred sixty-nine (743,869) who voted
for its rejection; while on the question as to whether or not the people would
still like a plebiscite to be called to ratify the new Constitution, fourteen
million two hundred ninety-eight thousand eight hundred fourteen
(14,298,814) answered that there was no need for a plebiscite and that the
vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;

"WHEREAS, since the referendum results show that more than ninety-five
(95) per cent of the members of the Barangays (Citizens Assemblies) are in
favor of the new Constitution, the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should already be deemed ratified
by the Filipino people;

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

by virtue of the powers in me vested by the Constitution, do hereby certify
and proclaim that the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been ratified by an
overwhelming majority of all of the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the Philippines, and has thereby
come into effect.

"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of
the Republic of the Philippines to be affixed.

"Done in the City of Manila, this 17th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.

(Sgd.) FERDINAND E. MARCOS

"President of the Philippines

"By the President:

"ALEJANDRO MELCHOR
"Executive Secretary"

Such is the background of the cases submitted determination. After

admitting some of the allegations made in the petition in L-35948 and
denying the other allegations thereof, respondents therein alleged in their
answer thereto, by way affirmative defenses: 1) that the "questions raised"
in said petition "are political in character"; 2) that "the Constitutional
Convention acted freely and had plenary authority to propose not only
amendments but a Constitution which would supersede the present
Constitution"; 3) that "the President's call for a plebiscite and the
appropriation of funds for this purpose are valid"; 4) that "there is not an
improper submission" and "there can be a plebiscite under Martial Law"; and
5) that the "argument that the Proposed Constitution is vague and
incomplete, makes an unconstitutional delegation of power, includes a
referendum on the proclamation of Martial Law and purports to exercise
judicial power" is "not relevant and ... without merit." Identical defenses were
set up in the other cases under consideration.

Immediately after the hearing held on January 17, 1973, or since the
afternoon of that date, the Members of the Court have been deliberating on
the aforementioned cases and, after extensive discussions on the merits
thereof, have deemed it best that each Member write his own views thereon
and that thereafter the Chief Justice should state the result or the votes thus
cast on the points in issue. Hence, the individual views of my brethren in the
Court are set forth in the opinions attached hereto, except that, instead of
writing their separate opinions, some Members have preferred to merely
concur in the opinion of one of our colleagues.
Then the writer of said decision expressed his own opinion on the issues
involved therein, after which he recapitulated the views of the Members of
the Court, as follows:

1. There is unanimity on the justiciable nature of the issue on the legality of

Presidential Decree No. 73.

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando,

Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the
opinion that the issue has become moot and academic, whereas Justices
Barredo, Makasiar and Antonio voted to uphold the validity of said Decree.

3. On the authority of the 1971 Constitutional Convention to pass the

proposed Constitution or to incorporate therein the provisions contested by
the petitioners in L-35948, Justices Makalintal, Castro, Teehankee and
Esguerra opine that the issue has become moot and academic. Justices
Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the
authority of the Convention.

4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional
Convention had authority to continue in the performance of its functions
despite the proclamation of Martial Law. In effect, Justices Barredo, Makasiar
and Antonio hold the same view.

5. On the question whether the proclamation of Martial Law affected the

proper submission of the proposed Constitution to a plebiscite, insofar as the
freedom essential therefor is concerned, Justice Fernando is of the opinion
that there is a repugnancy between the election contemplated under Art. XV
of the 1935 Constitution and the existence of Martial Law, and would,
therefore, grant the petitions were they not moot and academic. Justices
Barredo, Antonio and Esguerra are of the opinion that issue involves
questions of fact which cannot be predetermined, and that Martial Law per
se does not necessarily preclude the factual possibility of adequate freedom,
for the purposes contemplated.

6. On Presidential Proclamation No. 1102, the following views were

expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and

myself are of the opinion that the question of validity of said Proclamation
has not been properly raised before the Court, which, accordingly, should not
pass upon such question.
b. Justice Barredo holds that the issue on the constitutionality of
Proclamation No. 1102 has been submitted to and should be determined by
the Court, and that the "purported ratification of the Proposed Constitution ...
based on the referendum among Citizens' Assemblies falls short of being in
strict conformity with the requirements of Article XV of the 1935
Constitution," but that such unfortunate drawback notwithstanding,
"considering all other related relevant circumstances, ... the new Constitution
is legally recognizable and should be recognized as legitimately in force."

c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has

not been ratified in accordance with Article XV of the 1935 Constitution, and
that, accordingly, it has no force and effect whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the issue
whether the Proposed Constitution has been ratified by the people or not, "in
the absence of any judicially discoverable and manageable standards," since
the issue "poses a question of fact.

7. On the question whether or not these cases should be dismissed, Justices

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the
affirmative, for the reasons set forth in their respective opinions. Justices
Fernando, Teehankee, and the writer similarly voted, except as regards Case
No. L-35948 as to which they voted to grant to the petitioners therein a
reasonable period of time within which to file appropriate pleadings should
they wish to contest the legality of Presidential Proclamation No. 1102.
Justice Zaldivar favors the granting of said period to the petitioners in said
Case No. L-35948 for the aforementioned purpose, but he believes, in effect,
that the Court should go farther and decide on the merits everyone of the
cases under consideration.

Accordingly, the Court — acting in conformity with the position taken by six
(6) of its members,1with three (3) members dissenting,2with respect to G.R.
No. L-35948, only and another member3 dissenting, as regards all of the
cases dismissed the same, without special pronouncement as to costs.

The Present Cases

Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-
36142 against the Executive Secretary and the Secretaries of National
Defense, Justice and Finance, to restrain said respondents "and their
subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution" — referring to
that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino
citizen, and a qualified and registered voter" and as "a class suit, for himself,
and in behalf of all citizens and voters similarly situated," was amended on
or about January 24, 1973. After reciting in substance the facts set forth in
the decision in the plebiscite cases, Javellana alleged that the President had
announced "the immediate implementation of the New Constitution, thru his
Cabinet, respondents including," and that the latter "are acting without, or in
excess of jurisdiction in implementing the said proposed Constitution" upon
the ground: "that the President, as Commander-in-Chief of the Armed Forces
of the Philippines, is without authority to create the Citizens Assemblies";
that the same "are without power to approve the proposed Constitution ...";
"that the President is without power to proclaim the ratification by the
Filipino people of the proposed Constitution"; and "that the election held to
ratify the proposed Constitution was not a free election, hence null and void."

Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de
Peralta and Lorenzo M. Tañada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the
Auditor General, the Budget Commissioner, the Chairman of the Presidential
Commission on Reorganization, the Treasurer of the Philippines, the
Commission on Elections and the Commissioner of Civil Service 4 on February
3, 1973, by Eddie Monteclaro, personally and as President of the National
Press Club of the Philippines, against the Executive Secretary, the Secretary
of Public Information, the Auditor General, the Budget Commissioner and the
National Treasurer5and on February 12, 1973, by Napoleon V. Dilag, Alfredo
Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6against the
Executive Secretary, the Secretary of National Defense, the Budget
Commissioner and the Auditor General.

Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R.

Salonga, Salvador H. Laurel,7Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the
first as "duly elected Senator and Minority Floor Leader of the Senate," and
others as "duly elected members" thereof, filed Case G.R. No. L-36165,
against the Executive Secretary, the Secretary National Defense, the Chief of
Staff of the Armed Forces of the Philippines, the Secretary of General
Services, the President and the President Pro Tempore of the Senate. In their
petition — as amended on January 26, 1973 — petitioners Gerardo Roxas, et
al. allege, inter alia, that the term of office of three of the aforementioned
petitioners8would expire on December 31, 1975, and that of the others 9on
December 31, 1977; that pursuant to our 1935 Constitution, "which is still in
force Congress of the Philippines "must convene for its 8th Session on
Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of
its opening session"; that "on said day, from 10:00 A.M. up to the afternoon,"
said petitioner "along with their other colleagues, were unlawfully prevented
from using the Senate Session Hall, the same having been closed by the
authorities in physical possession and control the Legislative Building"; that
"(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire
Legislative Building were ordered cleared by the same authorities, and no
one was allowed to enter and have access to said premises"; that
"(r)espondent Senate President Gil J. Puyat and, in his absence, respondent
President Pro Tempore Jose Roy we asked by petitioning Senators to perform
their duties under the law and the Rules of the Senate, but unlawfully
refrained and continue to refrain from doing so"; that the petitioners ready
and willing to perform their duties as duly elected members of the Senate of
the Philippines," but respondent Secretary of National Defense, Executive
Secretary and Chief of Staff, "through their agents and representatives, are
preventing petitioners from performing their duties as duly elected Senators
of the Philippines"; that "the Senate premise in the Congress of the
Philippines Building ... are occupied by and are under the physical control of
the elements military organizations under the direction of said respondents";
that, as per "official reports, the Department of General Services ... is now
the civilian agency in custody of the premises of the Legislative Building";
that respondents "have unlawfully excluded and prevented, and continue to
so exclude and prevent" the petitioners "from the performance of their sworn
duties, invoking the alleged approval of the 1972 (1973) Constitution of the
Philippines by action of the so-called Citizens' Assemblies on January 10,
1973 to January 15, 1973, as stated in and by virtue of Proclamation No.
1102 signed and issued by the President of the Philippines"; that "the alleged
creation of the Citizens' Assemblies as instrumentalities for the ratification of
the Constitution of the Republic of the Philippines" is inherently illegal and
palpably unconstitutional; that respondents Senate President and Senate
President Pro Tempore "have unlawfully refrained and continue to refrain
from and/or unlawfully neglected and continue to neglect the performance of
their duties and functions as such officers under the law and the Rules of the
Senate" quoted in the petition; that because of events supervening the
institution of the plebiscite cases, to which reference has been made in the
preceding pages, the Supreme Court dismissed said cases on January 22,
1973, by a majority vote, upon the ground that the petitions therein had
become moot and academic; that the alleged ratification of the 1972 (1973)
Constitution "is illegal, unconstitutional and void and ... can not have
superseded and revoked the 1935 Constitution," for the reasons specified in
the petition as amended; that, by acting as they did, the respondents and
their "agents, representatives and subordinates ...have excluded the
petitioners from an office to which" they "are lawfully entitled"; that
"respondents Gil J. Puyat and Jose Roy have unlawfully refrained from
convening the Senate for its 8th session, assuming general jurisdiction over
the Session Hall and the premises of the Senate and ... continue such
inaction up to this time and ... a writ of mandamus is warranted in order to
compel them to comply with the duties and functions specifically enjoined by
law"; and that "against the above mentioned unlawful acts of the
respondents, the petitioners have no appeal nor other speedy and adequate
remedy in the ordinary course of law except by invoking the equitable
remedies of mandamus and prohibition with the provisional remedy of
preliminary mandatory injunction."

Premised upon the foregoing allegations, said petitioners prayed that,

"pending hearing on the merits, a writ of preliminary mandatory injunction
be issued ordering respondents Executive Secretary, the Secretary of
National Defense, the Chief of Staff of the Armed Forces of the Philippines,
and the ... Secretary of General Service, as well as all their agents,
representatives and subordinates to vacate the premises of the Senate of the
Philippines and to deliver physical possession of the same to the President of
the Senate or his authorized representative"; and that hearing, judgment be
rendered declaring null and Proclamation No. 1102 ... and any order, decree,
proclamation having the same import and objective, issuing writs of
prohibition and mandamus, as prayed for against above-mentioned
respondents, and making the writ injunction permanent; and that a writ
of mandamus be issued against the respondents Gil J. Puyat and Jose Roy
directing them to comply with their duties and functions as President and
President Pro Tempore, respectively, of the Senate of Philippines, as provided
by law and the Rules of the Senate."

Required to comment on the above-mentioned petitions and/or amended

petitions, respondents filed, with the leave Court first had and obtained, a
consolidated comment on said petitions and/or amended petitions, alleging
that the same ought to have been dismissed outright; controverting
petitioners' allegations concerning the alleged lack impairment of the
freedom of the 1971 Constitution Convention to approve the proposed
Constitution, its alleged lack of authority to incorporate certain contested
provisions thereof, the alleged lack of authority of the President to create and
establish Citizens' Assemblies "for the purpose submitting to them the
matter of ratification of the new Constitution," the alleged "improper or
inadequate submiss of the proposed constitution," the "procedure for
ratification adopted ... through the Citizens Assemblies"; a maintaining that:
1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the
questions raised therein are "political in character and therefore
nonjusticiable"; 3) "there substantial compliance with Article XV of the 1
Constitution"; 4) "(t)he Constitution was properly submitted the people in a
free, orderly and honest election; 5) "Proclamation No. 1102, certifying the
results of the election, is conclusive upon the courts"; and 6) "(t)he
amending process outlined in Article XV of the 1935 Constitution is not
exclusive of other modes of amendment."

Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their
separate comment therein, alleging that "(t)he subject matter" of said case
"is a highly political question which, under the circumstances, this ...Court
would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the
plebiscite cases, in effect upholding the validity of Proclamation No. 1102,
"further proceedings in this case may only be an academic exercise in
futility."

On February 5, 1973, the Court issued a resolution requiring respondents in

L-36236 to comment on the petition therein not later than Saturday,
February 10, 1973, and setting the case for hearing on February 12, 1973, at
9:30 a.m. By resolution dated February 7, 1973, this Court resolved to
consider the comments of the respondents in cases G.R. Nos. L-36142, L-
36164, and L-36165, as motions to dismiss the petitions therein, and to set
said cases for hearing on the same date and time as L-36236. On that date,
the parties in G.R. No. L-3628310agreed that the same be, likewise, heard, as
it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-
36142, L-36164, L-36165 and L-36236. The hearing, which began on
February 12, 1973, shortly after 9:30 a.m., was continued not only that
afternoon, but, also, on February 13, 14, 15 and 16, morning and afternoon,
after which the parties were granted up to February 24, 1973, noon, within
which to submit their notes of oral arguments and additional arguments, as
well as the documents required of them or whose presentation was reserved
by them. The same resolution granted the parties until March 1, 1973, to
reply to the notes filed by their respective opponents. Counsel for the
petitioners in G.R. Nos. L-36164 and L-36165 filed their aforementioned
notes on February 24, 1973, on which date the Solicitor General sought an
extension of time up to March 3, 1973, within which to file his notes, which
was granted, with the understanding that said notes shall include his reply to
the notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165.
Counsel for the petitioners, likewise, moved and were granted an extension
of time, to expire on March 10, 1973, within which to file, as they did, their
notes in reply to those submitted by the Solicitor General on March 3, 1973.
On March 21, 1973, petitioners in L-36165 filed a "Manifestation a
Supplemental Rejoinder," whereas the Office of the Solicitor General
submitted in all these cases a "Rejoinder Petitioners' Replies."

After deliberating on these cases, the members of the Court agreed that
each would write his own opinion and serve a copy thereof on his colleagues,
and this they did. Subsequently, the Court discussed said opinions and votes
were cast thereon. Such individual opinions are appended hereto.

Accordingly, the writer will first express his person opinion on the issues
before the Court. After the exposition his aforesaid opinion, the writer will
make, concurrently with his colleagues in the Court, a resume of summary of
the votes cast by them in these cases.

Writer's Personal Opinion

I.

Alleged academic futility of further proceedings in G.R. L-36165.

This defense or theory, set up by counsel for respondents Gil J. Puyat and
Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is predicated
upon the fact that, in Our decision in the plebiscite cases, Mr. Justice Barredo
had expressed the view that the 1935 Constitution had "pro tanto passed
into history" and "been legitimately supplanted by the Constitution now in
force by virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did not
feel "that this Court competent to act" in said cases "in the absence of any
judicially discoverable and manageable standards" and because "the access
to relevant information is insufficient to assure the correct determination of
the issue," apart from the circumstance that "the new constitution has been
promulgated and great interests have already arisen under it" and that the
political organ of the Government has recognized its provisions; whereas, Mr.
Justice Esguerra had postulated that "(w)ithout any competent evidence ...
about the circumstances attending the holding" of the "referendum or
plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not
lawfully held" and that, accordingly, he assumed "that what the proclamation
(No. 1102) says on its face is true and until overcome by satisfactory
evidence" he could not "subscribe to the claim that such plebiscite was not
held accordingly"; and that he accepted "as a fait accompli that the
Constitution adopted (by the 1971 Constitutional Convention) on November
30, 1972, has been duly ratified.

Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under
these circumstances, "it seems remote or improbable that the necessary
eight (8) votes under the 1935 Constitution, and much less the ten (10)
votes required by the 1972 (1973) Constitution, can be obtained for the relief
sought in the Amended Petition" in G.R. No. L-36165.

I am unable to share this view. To begin with, Mr. Justice Barredo announced
publicly, in open court, during the hearing of these cases, that he was and is
willing to be convinced that his aforementioned opinion in the plebiscite
cases should be reconsidered and changed. In effect, he thus declared that
he had an open mind in connection with the cases at bar, and that in
deciding the same he would not necessarily adhere to said opinion if the
petitioners herein succeeded in convincing him that their view should be
sustained.

Secondly, counsel for the aforesaid respondents had apparently assumed

that, under the 1935 Constitution, eight (8) votes are necessary to declare
invalid the contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said Constitution. Section 10 of
Article VIII thereof reads:

All cases involving the constitutionality of a treaty or law shall be heard and
decided by the Supreme Court in banc, and no treaty or law may be declared
unconstitutional without the concurrence of two thirds of all the members of
the Court.

Pursuant to this section, the concurrence of two-thirds of all the Members of

the Supreme Court is required only to declare "treaty or law"
unconstitutional. Construing said provision, in a resolution dated September
16, 1949, then Chief Justice Moran, voicing the unanimous view of the
Members of this Court, postulated:

... There is nothing either in the Constitution or in the Judiciary Act requiring
the vote of eight Justices to nullify a rule or regulation or an executive order
issued by the President. It is very significant that in the previous drafts of
section 10, Article VIII of the Constitution, "executive order" and
"regulation" were included among those that required for their nullification
the vote of two-thirds of all the members of the Court. But "executive order"
and "regulation" were later deleted from the final draft (Aruego, The Framing
of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere majority
of six members of this Court is enough to nullify them.11

The distinction is not without reasonable foundation. The two thirds vote
(eight [8] votes) requirement, indeed, was made to apply only to treaty and
law, because, in these cases, the participation of the two other departments
of the government — the Executive and the Legislative — is present, which
circumstance is absent in the case of rules, regulations and executive orders.
Indeed, a law (statute) passed by Congress is subject to the approval or veto
of the President, whose disapproval cannot be overridden except by the vote
of two-thirds (2/3) of all members of each House of Congress. 12A treaty is
entered into by the President with the concurrence of the Senate, 13which is
not required in the case of rules, regulations or executive orders which are
exclusive acts of the President. Hence, to nullify the same, a lesser number
of votes is necessary in the Supreme Court than that required to invalidate a
law or treaty.

Although the foregoing refers to rules, regulations and executive orders

issued by the President, the dictum applies with equal force to executive
proclamation, like said Proclamation No. 1102, inasmuch as the authority to
issue the same is governed by section 63 of the Revised Administrative
Code, which provides:

Administrative acts and commands of the (Governor-General) President of

the Philippines touching the organization or mode of operation of the
Government or rearranging or readjusting any of the districts, divisions, parts
or ports of the (Philippine Islands) Philippines and all acts and commands
governing the general performance of duties by public employees or
disposing of issues of general concern shall be made effective in executive
orders.

Executive orders fixing the dates when specific laws, resolutions, or orders
are to have or cease to (have) effect and any information concerning
matters of public moment determined by law, resolution, or executive orders,
may be promulgated in an executive proclamation, with all the force of an
executive order.14

In fact, while executive order embody administrative acts or commands of

the President, executive proclamations are mainly informative and
declaratory in character, and so does counsel for respondents Gil J. Puyat
and Jose Roy maintain in G.R. No. L-36165.15As consequence, an executive
proclamation has no more than "the force of an executive order," so that, for
the Supreme Court to declare such proclamation unconstitutional, under the
1935 Constitution, the same number of votes needed to invalidate an
executive order, rule or regulation — namely, six (6) votes — would suffice.

As regards the applicability of the provisions of the proposed new

Constitution, approved by the 1971 Constitutional Convention, in the
determination of the question whether or not it is now in force, it is obvious
that such question depends upon whether or not the said new Constitution
has been ratified in accordance with the requirements of the 1935
Constitution, upon the authority of which said Constitutional Convention was
called and approved the proposed Constitution. It is well settled that the
matter of ratification of an amendment to the Constitution should be settled
by applying the provisions of the Constitution in force at the time of the
alleged ratification, or the old Constitution.16

II

Does the issue on the validity of Proclamation No. 1102 partake of the
nature of a political, and, hence, non-justiciable question?

The Solicitor General maintains in his comment the affirmative view and this
is his main defense. In support thereof, he alleges that "petitioners would
have this Court declare as invalid the New Constitution of the Republic" from
which — he claims — "this Court now derives its authority"; that "nearly 15
million of our body politic from the age of 15 years have mandated this
Constitution to be the New Constitution and the prospect of unsettling acts
done in reliance on it caution against interposition of the power of judicial
review"; that "in the case of the New Constitution, the government has been
recognized in accordance with the New Constitution"; that "the country's
foreign relations are now being conducted in accordance with the new
charter"; that "foreign governments have taken note of it"; that the
"plebiscite cases" are "not precedents for holding questions regarding
proposal and ratification justiciable"; and that "to abstain from judgment on
the ultimate issue of constitutionality is not to abdicate duty."

At the outset, it is obvious to me that We are not being asked to "declare"

the new Constitution invalid. What petitioners dispute is the theory that it
has been validly ratified by the people, especially that they have done so in
accordance with Article XV of the 1935 Constitution. The petitioners maintain
that the conclusion reached by the Chief Executive in the dispositive portion
of Proclamation No. 1102 is not borne out by the whereases preceding the
same, as the predicates from which said conclusion was drawn; that the
plebiscite or "election" required in said Article XV has not been held; that the
Chief Executive has no authority, under the 1935 Constitution, to
dispense with said election or plebiscite; that the proceedings before the
Citizens' Assemblies did not constitute and may not be considered as such
plebiscite; that the facts of record abundantly show that the aforementioned
Assemblies could not have been held throughout the Philippines from January
10 to January 15, 1973; and that, in any event, the proceedings in said
Assemblies are null and void as an alleged ratification of the new
Constitution proposed by the 1971 Constitutional Convention, not only
because of the circumstances under which said Assemblies had been created
and held, but, also, because persons disqualified to vote under Article V of
the Constitution were allowed to participate therein, because the provisions
of our Election Code were not observed in said Assemblies, because the
same were not held under the supervision of the Commission on Elections, in
violation of section 2 of Article X of the 1935 Constitution, and because the
existence of Martial Law and General Order No. 20, withdrawing or
suspending the limited freedom to discuss the merits and demerits of said
proposed Constitution, impaired the people's freedom in voting thereon,
particularly a viva voce, as it was done in many instances, as well as their
ability to have a reasonable knowledge of the contents of the document on
which they were allegedly called upon to express their views.

Referring now more specifically to the issue on whether the new Constitution
proposed by the 1971 Constitutional Convention has been ratified in
accordance with the provisions of Article XV of the 1935 Constitution is a
political question or not, I do not hesitate to state that the answer must be in
the negative. Indeed, such is the position taken by this Court, 17 in an
endless line of decisions, too long to leave any room for possible doubt that
said issue is inherently and essentially justiciable. Such, also, has been the
consistent position of the courts of the United States of America, whose
decisions have a persuasive effect in this jurisdiction, our constitutional
system in the 1935 Constitution being patterned after that of the United
States. Besides, no plausible reason has, to my mind, been advanced to
warrant a departure from said position, consistently with the form of
government established under said Constitution..

Thus, in the aforementioned plebiscite cases, 18We rejected the theory of the
respondents therein that the question whether Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, for the ratification or
rejection of the proposed new Constitution, was valid or not, was not a
proper subject of judicial inquiry because, they claimed, it partook of a
political nature, and We unanimously declared that the issue was
a justiciable one. With identical unanimity, We overruled the respondents'
contention in the 1971 habeas corpus cases,19questioning Our authority to
determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas
corpus on August 21, 1971, despite the opposite view taken by this Court
in Barcelona v. Baker20and Montenegro v. Castañeda,21insofar as it adhered
to the former case, which view We, accordingly, abandoned and refused to
apply. For the same reason, We did not apply and expressly modified,
in Gonzales v. Commission on Elections,22the political-question theory
adopted in Mabanag v. Lopez Vito.23Hence, respondents herein urge Us to
reconsider the action thus taken by the Court and to revert to and follow the
views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito.24

The reasons adduced in support thereof are, however, substantially the same
as those given in support of the political-question theory advanced in
said habeas corpus and plebiscite cases, which were carefully considered by
this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence, Our decision in the aforementioned habeas
corpus cases partakes of the nature and effect of a stare decisis, which
gained added weight by its virtual reiteration in the plebiscite cases.

The reason why the issue under consideration and other issues of similar
character are justiciable, not political, is plain and simple. One of the
principal bases of the non-justiciability of so-called political questions is the
principle of separation of powers — characteristic of the Presidential system
of government — the functions of which are classified or divided, by reason
of their nature, into three (3) categories, namely: 1) those involving the
making of laws, which are allocated to the legislative department; 2) those
concerned mainly with the enforcement of such laws and of judicial decisions
applying and/or interpreting the same, which belong to the executive
department; and 3) those dealing with the settlement of disputes,
controversies or conflicts involving rights, duties or prerogatives that are
legally demandable and enforceable, which are apportioned to courts of
justice. Within its own sphere — but only within such sphere — each
department is supreme and independent of the others, and each is devoid of
authority, not only to encroach upon the powers or field of action assigned to
any of the other departments, but, also, to inquire into or pass upon the
advisability or wisdom of the acts performed, measures taken or decisions
made by the other departments — provided that such acts, measures or
decisions are within the area allocated thereto by the Constitution. 25
This principle of separation of powers under the presidential system goes
hand in hand with the system of checks and balances, under which each
department is vested by the Fundamental Law with some powers to forestall,
restrain or arrest a possible or actual misuse or abuse of powers by the other
departments. Hence, the appointing power of the Executive, his pardoning
power, his veto power, his authority to call the Legislature or Congress to
special sessions and even to prescribe or limit the object or objects of
legislation that may be taken up in such sessions, etc. Conversely, Congress
or an agency or arm thereof — such as the commission on Appointments —
may approve or disapprove some appointments made by the President. It,
also, has the power of appropriation, to "define, prescribe, and apportion the
jurisdiction of the various courts," as well as that of impeachment. Upon the
other hand, under the judicial power vested by the Constitution, the
"Supreme Court and ... such inferior courts as may be established by law,"
may settle or decide with finality, not only justiciable controversies between
private individuals or entities, but, also, disputes or conflicts between a
private individual or entity, on the one hand, and an officer or branch of the
government, on the other, or between two (2) officers or branches of service,
when the latter officer or branch is charged with acting without jurisdiction or
in excess thereof or in violation of law. And so, when a power vested in said
officer or branch of the government is absolute or unqualified, the acts in the
exercise of such power are said to be political in nature, and, consequently,
non-justiciable or beyond judicial review. Otherwise, courts of justice would
be arrogating upon themselves a power conferred by the Constitution upon
another branch of the service to the exclusion of the others. Hence,
in Tañada v. Cuenco,26this Court quoted with approval from In re
McConaughy,27the following:

"At the threshold of the case we are met with the assertion that the
questions involved are political, and not judicial. If this is correct, the court
has no jurisdiction as the certificate of the state canvassing board would
then be final, regardless of the actual vote upon the amendment. The
question thus raised is a fundamental one; but it has been so often decided
contrary to the view contended for by the Attorney General that it would
seem to be finally settled.

xxx xxx xxx

"... What is generally meant, when it is said that a question is political, and
not judicial, is that it is a matter which is to be exercised by the people in
their primary political capacity, or that it has been specifically delegated to
some other department or particular officer of the government, with
discretionary power to act. See State vs. Cunningham, 81 Wis. 497, N.W.
724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A.
519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs.
Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus
the Legislature may in its discretion determine whether it will pass law or
submit a proposed constitutional amendment to the people. The courts have
no judicial control over such matters, not merely because they involve
political questions, but because they are matters which the people have by
the Constitution delegated to the Legislature. The Governor may exercise the
powers delegated him, free from judicial control, so long as he observes the
laws act within the limits of the power conferred. His discretionary acts
cannot be controllable, not primarily because they are of a politics nature,
but because the Constitution and laws have placed the particular matter
under his control. But every officer under constitutional government must
act accordingly to law and subject its restrictions, and every departure
therefrom or disregard thereof must subject him to that restraining and
controlling power of the people, acting through the agency of the judiciary;
for it must be remembered that the people act through courts, as well as
through the executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law
places upon all official action. The recognition of this principle, unknown
except in Great Britain and America, is necessary, to "the end that the
government may be one of laws and not of men" — words which Webster
said were the greatest contained in any written constitutional document."
(Emphasis supplied.)

and, in an attempt to describe the nature of a political question in terms, it

was hoped, understandable to the laymen, We added that "... the term
"political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy" in matters concerning the
government of a State, as a body politic. "In other words, in the language of
Corpus Juris Secundum (supra), it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the government." It is concerned with
issues dependent upon the wisdom, not legality, of a particular measure."

Accordingly, when the grant of power is qualified, conditional or subject to

limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is justiciable or non-
political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations — particularly those prescribed or imposed by the Constitution —
would be set at naught. What is more, the judicial inquiry into such issue and
the settlement thereof are the main functions of courts of justice under the
Presidential form of government adopted in our 1935 Constitution, and the
system of checks and balances, one of its basic predicates. As a
consequence, We have neither the authority nor the discretion to decline
passing upon said issue, but are under the ineluctable obligation — made
particularly more exacting and peremptory by our oath, as members of the
highest Court of the land, to support and defend the Constitution — to settle
it. This explains why, in Miller v. Johnson,28it was held that courts have a
"duty, rather than a power", to determine whether another branch of the
government has "kept within constitutional limits." Not satisfied with this
postulate, the court went farther and stressed that, if the Constitution
provides how it may be amended — as it is in our 1935 Constitution —
"then, unless the manner is followed, the judiciary as the interpreter of that
constitution, will declare the amendment invalid."29In fact, this very Court —
speaking through Justice Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected and foremost
leaders of the Convention that drafted the 1935 Constitution — declared, as
early as July 15, 1936, that "(i)n times of social disquietude or political
excitement, the great landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. In cases of conflict,
the judicial department is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the several
departments" of the government.30

The Solicitor General has invoked Luther v. Borden31in support of his stand
that the issue under consideration is non-justiciable in nature. Neither the
factual background of that case nor the action taken therein by the Federal
Supreme Court has any similarity with or bearing on the cases under
consideration.

Luther v. Borden was an action for trespass filed by Luther with the Circuit
Court of the United States against Borden and others for having forcibly
entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of England,
alleged in their defense that they had acted in obedience to the commands
of a superior officer, because Luther and others were engaged in a
conspiracy to overthrow the government by force and the state had been
placed by competent authority under Martial Law. Such authority was the
charter government of Rhode Island at the time of the Declaration of
Independence, for — unlike other states which adopted a new Constitution
upon secession from England — Rhode Island retained its form of
government under a British Charter, making only such alterations, by acts of
the Legislature, as were necessary to adapt it to its subsequent condition as
an independent state. It was under this form of government when Rhode
Island joined other American states in the Declaration of Independence and,
by subsequently ratifying the Constitution of the United States, became a
member of the Union. In 1843, it adopted a new Constitution.

Prior thereto, however, many citizens had become dissatisfied with the
charter government. Memorials addressed by them to the Legislature having
failed to bring about the desired effect, meetings were held and associations
formed — by those who belonged to this segment of the population — which
eventually resulted in a convention called for the drafting of a new
Constitution to be submitted to the people for their adoption or rejection. The
convention was not authorized by any law of the existing government. The
delegates to such convention framed a new Constitution which was
submitted to the people. Upon the return of the votes cast by them, the
convention declared that said Constitution had been adopted and ratified by
a majority of the people and became the paramount law and Constitution of
Rhode Island.

The charter government, which was supported by a large number of citizens

of the state, contested, however, the validity of said proceedings. This
notwithstanding, one Thomas W. Dorr, who had been elected governor under
the new Constitution of the rebels, prepared to assert authority by force of
arms, and many citizens assembled to support him. Thereupon, the charter
government passed an Act declaring the state under Martial Law and
adopted measures to repel the threatened attack and subdue the rebels. This
was the state of affairs when the defendants, who were in the military
service of the charter government and were to arrest Luther, for engaging in
the support of the rebel government — which was never able to
exercise any authority in the state — broke into his house.

Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a new
constitution was drafted by a convention held under the authority of the
charter government, and thereafter was adopted and ratified by the people.
"(T)he times and places at which the votes were to be given, the persons
who were to receive and return them, and the qualifications of the
voters having all been previously authorized and provided for by law passed
by the charter government," the latter formally surrendered all of its powers
to the new government, established under its authority, in May 1843, which
had been in operation uninterruptedly since then.

About a year before, or in May 1842, Dorr, at the head of a military force,
had made an unsuccessful attempt to take possession of the state arsenal in
Providence, but he was repulsed, and, after an "assemblage of some
hundreds of armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the old
government, no further effort was made to establish" his government. "...
until the Constitution of 1843" — adopted under the auspices of the charter
government — "went into operation, the charter government continued to
assert its authority and exercise its powers and to enforce obedience
throughout the state ... ."

Having offered to introduce evidence to prove that the constitution of the

rebels had been ratified by the majority of the people, which the Circuit Court
rejected, apart from rendering judgment for the defendants, the plaintiff took
the case for review to the Federal Supreme Court which affirmed the action
of the Circuit Court, stating:

It is worthy of remark, however, when we are referring to the authority of

State decisions, that the trial of Thomas W. Dorr took place after the
constitution of 1843 went into operation. The judges who decided that case
held their authority under that constitution and it is admitted on all hands
that it was adopted by the people of the State, and is the lawful and
established government. It is the decision, therefore, of a State court, whose
judicial authority to decide upon the constitution and laws of Rhode Island is
not questioned by either party to this controversy, although the government
under which it acted was framed and adopted under the sanction and laws of
the charter government.

The point, then, raised here has been already decided by the courts of
Rhode Island. The question relates, altogether, to the constitution and
laws of that State, and the well settled rule in this court is, that the courts of
the United States adopt and follow the decisions of the State courts in
questions which concern merely the constitution and laws of the State.
Upon what ground could the Circuit Court of the United States which tried
this case have departed from this rule, and disregarded and overruled the
decisions of the courts of Rhode Island? Undoubtedly the courts of the United
States have certain powers under the Constitution and laws of the United
States which do not belong to the State courts. But the power of determining
that a State government has been lawfully established, which the courts of
the State disown and repudiate, is not one of them. Upon such a question
the courts of the United States are bound to follow the decisions of the State
tribunals, and must therefore regard the charter government as the lawful
and established government during the time of this contest. 32

It is thus apparent that the context within which the case of Luther v.
Borden was decided is basically and fundamentally different from that of the
cases at bar. To begin with, the case did not involve a federal question, but
one purely municipal in nature. Hence, the Federal Supreme Court was
"bound to follow the decisions of the State tribunals" of Rhode Island
upholding the constitution adopted under the authority of the charter
government. Whatever else was said in that case constitutes, therefore,
an obiter dictum. Besides, no decision analogous to that rendered by the
State Court of Rhode Island exists in the cases at bar. Secondly, the states of
the Union have a measure of internal sovereignty upon which the Federal
Government may not encroach, whereas ours is a unitary form of
government, under which our local governments derive their authority from
the national government. Again, unlike our 1935 Constitution, the charter or
organic law of Rhode Island contained no provision on the manner, procedure
or conditions for its amendment.

Then, too, the case of Luther v. Borden hinged more on the question of
recognition of government, than on recognition of constitution, and there is a
fundamental difference between these two (2) types of recognition, the first
being generally conceded to be a political question, whereas the nature of
the latter depends upon a number of factors, one of them being whether the
new Constitution has been adopted in the manner prescribed in the
Constitution in force at the time of the purported ratification of the former,
which is essentially a justiciable question. There was, in Luther v. Borden, a
conflict between two (2) rival governments, antagonistic to each other,
which is absent in the present cases. Here, the Government established
under the 1935 Constitution is the very same government whose Executive
Department has urged the adoption of the new or revised Constitution
proposed by the 1971 Constitutional Convention and now alleges that it has
been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther v.
Borden, decided in 1849, on matters other than those referring to its power
to review decisions of a state court concerning the constitution and
government of that state, not the Federal Constitution or Government, are
manifestly neither, controlling, nor even persuasive in the present cases,
having as the Federal Supreme Court admitted — no authority whatsoever to
pass upon such matters or to review decisions of said state court thereon. In
fact, referring to that case, the Supreme Court of Minnessota had the
following to say:

Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert
that the courts have no power to determine questions of a political character.
It is interesting historically, but it has not the slightest application to the case
at bar. When carefully analyzed, it appears that it merely determines that
the federal courts will accept as final and controlling a decision of the
highest court of a state upon a question of the construction of the
Constitution of the state. ... .33

Baker v. Carr,34cited by respondents, involved an action to annul a Tennessee

statute apportioning the seats in the General Assembly among the counties
of the State, upon the theory that the legislation violated the equal
protection clause. A district court dismissed the case upon the ground,
among others, that the issue was a political one, but, after a painstaking
review of the jurisprudence on the matter, the Federal Supreme
Court reversed the appealed decision and held that said issue was
justiciable and non-political, inasmuch as:"... (d)eciding whether a matter has
in any measure been committed by the Constitution to another branch of
government, or whether the action of that branch exceeds whatever
authority has been committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate interpreter of
the Constitution ... ."

Similarly, in Powell v. McCormack,35the same Court, speaking through then

Chief Justice Warren, reversed a decision of the Court of Appeals of New York
affirming that of a Federal District Court, dismissing Powell's action for a
declaratory judgment declaring thereunder that he — whose qualifications
were uncontested — had been unlawfully excluded from the 90th Congress
of the U.S. Said dismissal was predicated upon the ground, inter alia, that the
issue was political, but the Federal Supreme Court held that it was clearly a
justiciable one.
The Supreme Court of Minnessota undertook a careful review of American
jurisprudence on the matter. Owing to the lucidity of its appraisal thereof, We
append the same to this opinion as Annex A thereof.

After an, exhaustive analysis of the cases on this subject, the Court
concluded:

The authorities are thus practically uniform in holding that whether a

constitutional amendment has been properly adopted according to the
requirements of an existing Constitution is a judicial question. There can be
little doubt that the consensus of judicial opinion is to the effect that it is
the absolute duty of the judiciary to determine whether the Constitution has
been amended in the manner required by the Constitution, unless a special
tribunal has been created to determine the question; and even then many of
the courts hold that the tribunal cannot be permitted to illegally amend the
organic law. ... .36

In the light of the foregoing, and considering that Art. XV of our 1935
Constitution prescribes the method or procedure for its amendment, it is
clear to my mind that the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been ratified in
accordance with said Art. XV is a justiciable one and non-political in nature,
and that it is not only subject to judicial inquiry, but, also, that it is the
Court's bounden duty to decide such question.

The Supreme Court of the United States has meaningfully postulated that
"the courts cannot reject as 'no law suit' " — because it allegedly involves a
political question — "a bona fide controversy as to whether some action
denominated "political" exceeds constitutional authority."37

III

Has the proposed new or revised Constitution been ratified conformably to

said Art. XV of the 1935 Constitution?

Petitioners in L-36142 maintain the negative view, upon ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through
which, respondents maintain, the proposed new Constitution has been
ratified; that said Assemblies "are without power to approve the proposed
Constitution"; 3) that the President "is without power to proclaim the
ratification by the Filipino people of the proposed Constitution"; and 4) that
"the election held (in the Citizens' Assemblies) to ratify the proposed
Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said negative
view, the petitioners in L-36164 contend: 1) that the President "has no power
to call a plebiscite for the ratification or rejection" of the proposed new
Constitution or "to appropriate funds for the holding of the said plebiscite"; 2)
that the proposed new or revised Constitution "is vague and incomplete," as
well as "contains provisions which are beyond the powers of the 1971
Convention to enact," thereby rendering it "unfit for ... submission the
people;" 3) that "(t)he period of time between November 1972 when the
1972 draft was approved and January 11-15, 1973," when the Citizens'
Assemblies supposedly ratified said draft, "was too short, worse still, there
was practically no time for the Citizens' Assemblies to discuss the merits of
the Constitution which the majority of them have not read a which they
never knew would be submitted to them ratification until they were asked
the question — "do you approve of the New Constitution?" during the said
days of the voting"; and that "(t)here was altogether no freedom discussion
and no opportunity to concentrate on the matter submitted to them when
the 1972 draft was supposedly submitted to the Citizens' Assemblies for
ratification."

Petitioner in L-36236 added, as arguments in support of the negative view,

that : 1) "(w)ith a government-controlled press, there can never be a fair and
proper submission of the proposed Constitution to the people"; and 2)
Proclamation No. 1102 is null and void "(i)nasmuch as the ratification
process" prescribed "in the 1935 Constitution was not followed."

Besides adopting substantially some of the grounds relied upon by the

petitioners in the above-mentioned cases, the petitioners in L-36283 argue
that "(t)he creation of the Citizens' Assemblies as the vehicle for the
ratification of the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite to
either February 19 or March 5, 1973."38

The reasons adduced by the petitioners in L-36165 in favor of the negative

view have already been set forth earlier in this opinion. Hence, it is
unnecessary to reproduce them here. So it is, with respect to the positions
taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose Roy
— although more will be said later about them — and by the Solicitor
General, on behalf of the other respondents in that case and the respondents
in the other cases.

1. What is the procedure prescribed by the 1935 Constitution for its

amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential,
namely:

1. That the amendments to the Constitution be proposed either by Congress

or by a convention called for that purpose, "by a vote of three-fourths of all
the Members of the Senate and the House of Representatives voting
separately," but "in joint session assembled";

2. That such amendments be "submitted to the people for their ratification"

at an "election"; and

3. That such amendments be "approved by a majority of the votes cast" in

said election.

Compliance with the first requirement is virtually conceded, although the

petitioners in L-36164 question the authority of the 1971 Constitutional
Convention to incorporate certain provisions into the draft of the new or
revised Constitution. The main issue in these five (5) cases hinges, therefore,
on whether or not the last two (2) requirements have been complied with.

2. Has the contested draft of the new or revised Constitution been submitted
to the people for their ratification conformably to Art. XV of the Constitution?

In this connection, other provisions of the 1935 Constitution concerning

"elections" must, also, be taken into account, namely, section I of Art. V and
Art. X of said Constitution. The former reads:

Section 1. Suffrage may be exercised by male citizens of the Philippines not

otherwise disqualified by law, who are twenty-one years of age or over and
are able to read and write, and who shall have resided in the Philippines for
one year and in the municipality wherein they propose to vote for at least six
months preceding the election. The National Assembly shall extend the right
of suffrage to women, if in a plebiscite which shall be held for that purpose
within two years after the adoption of this Constitution, not less than three
hundred thousand women possessing the necessary qualifications shall vote
affirmatively on the question.

Sections 1 and 2 of Art. X of the Constitution ordain in part:

Section 1. There shall be an independent Commission on Elections

composed of a Chairman and two other Members to be appointed by the
President with the consent of the Commission on Appointments, who shall
hold office for a term of nine years and may not be reappointed. ...

xxx xxx xxx

Sec. 2. The Commission on Elections shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of
elections and shall exercise all other functions which may be conferred upon
it by law. It shall decide, save those involving the right to
vote, all administrative questions, affecting elections, including the
determination of the number and location of polling places, and the
appointment of election inspectors and of other election officials. All law
enforcement agencies and instrumentalities of the Government, when so
required by the Commission, shall act as its deputies for the purpose
of insuring fee, orderly, and honest elections. The decisions, orders, and
rulings of the Commission shall be subject to review by the Supreme Court.

xxx xxx x x x39

a. Who may vote in a plebiscite under Art. V of the Constitution?

Petitioners maintain that section 1 of Art. V of the Constitution is a

limitation upon the exercise of the right of suffrage. They claim that no other
persons than "citizens of the Philippines not otherwise disqualified by law,
who are twenty-one years of age or over and are able to read and write, and
who shall have resided in the Philippines for one year and in the municipality
wherein they propose to vote for at least six months preceding the election,"
may exercise the right of suffrage in the Philippines. Upon the other hand,
the Solicitor General contends that said provision merely guarantees the
right of suffrage to persons possessing the aforementioned qualifications and
none of the disqualifications, prescribed by law, and that said right may be
vested by competent authorities in persons lacking some or all of the
aforementioned qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the permissive nature of
the language — "(s)uffrage may be exercised" — used in section 1 of Art. V
of the Constitution, and the provisions of the Revised Barrio Charter, Republic
Act No. 3590, particularly sections 4 and 6 thereof, providing that citizens of
the Philippines "eighteen years of age or over," who are registered in the list
of barrio assembly members, shall be members thereof and may participate
as such in the plebiscites prescribed in said Act.

I cannot accept the Solicitor General's theory. Art. V of the Constitution

declares who may exercise the right of suffrage, so that those lacking the
qualifications therein prescribed may not exercise such right. This view is
borne out by the records of the Constitutional Convention that drafted the
1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was
largely based on the report of the committee on suffrage of the Convention
that drafted said Constitution which report was, in turn, "strongly influenced
by the election laws then in force in the Philippines ... ." 40" Said committee
had recommended: 1) "That the right of suffrage should exercised only by
male citizens of the Philippines." 2) "That should be limited to those who
could read and write." 3) "That the duty to vote should be made obligatory."
It appears that the first recommendation was discussed extensively in the
Convention, and that, by way of compromise, it was eventually agreed to
include, in section 1 of Art. V of the Constitution, the second sentence
thereof imposing upon the National Assembly established by the original
Constitution — instead of the bicameral Congress subsequently created by
amendment said Constitution — the duty to "extend the right of suffrage
women, if in a plebiscite to, be held for that purpose within two years after
the adoption of this Constitution, not less than three hundred thousand
women possessing the necessary qualifications shall vote affirmatively on
the question."41

The third recommendation on "compulsory" voting was, also debated upon

rather extensively, after which it was rejected by the Convention. 42This
accounts, in my opinion, for the permissive language used in the first
sentence of said Art. V. Despite some debates on the age qualification —
amendment having been proposed to reduce the same to 18 or 20, which
were rejected, and the residence qualification, as well as the disqualifications
to the exercise of the right of suffrage — the second
recommendation limiting the right of suffrage to those who could "read and
write" was — in the language of Dr. Jose M. Aruego, one of the Delegates to
said Convention — "readily approved in the Convention without any
dissenting vote," although there was some debate on whether the
Fundamental Law should specify the language or dialect that the voter could
read and write, which was decided in the negative. 43

What is relevant to the issue before Us is the fact that the constitutional
provision under consideration was meant to be and is
a grant or conferment of a right to persons possessing the qualifications and
none of the disqualifications therein mentioned, which in turn, constitute
a limitation of or restriction to said right, and cannot, accordingly, be
dispensed with, except by constitutional amendment. Obviously, every such
constitutional grant or conferment of a right is necessarily a negation of the
authority of Congress or of any other branch of the Government to deny said
right to the subject of the grant — and, in this sense only, may the same
partake of the nature of a guarantee. But, this does not imply not even
remotely, that the Fundamental Law allows Congress or anybody else to vest
in those lacking the qualifications and having the disqualifications mentioned
in the Constitution the right of suffrage.

At this juncture, it is noteworthy that the committee on suffrage responsible

for the adoption of section 1 of Art. V of the Constitution was "strongly
influenced by the election laws then in force in the Philippines." Our first
Election Law was Act 1582, passed on January 9, 1907, which was partly
amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the
Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, and then
in the Administrative Code of 1917 — Act 2711 — as chapter 18 thereof,
which, in turn, was amended by Act 3387, approved on December 3, 1927.
Sections 431 and 432 of said Code of 1917, prescribing, respectively, the
qualifications for and disqualifications from voting, are quoted below. 44In all
of these legislative acts, the provisions concerning the qualifications of
voters partook of the nature of a grant or recognition of the right of suffrage,
and, hence, of a denial thereof to those who lacked the requisite qualification
and possessed any of the statutory disqualifications. In short, the history of
section 1, Art. V of the Constitution, shows beyond doubt than the same
conferred — not guaranteed — the authority to persons having the
qualifications prescribed therein and none of disqualifications to be specified
in ordinary laws and, necessary implication, denied such right to those
lacking any said qualifications, or having any of the aforementioned
disqualifications.

This view is further bolstered by the fact that the 1971 Constitutional
Convention sought the submission to a plebiscite of a "partial amendment"
to said section 1 of Art. V of the 1935 Constitution, by reducing the voting
age from twenty-one (21) years to eighteen (18) years, which, however, did
not materialize on account of the decision of this Court in Tolentino v.
Commission on Elections,45granting the writs, of prohibition and injunction
therein applied for, upon the ground that, under the Constitution, all of the
amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct
elections, and that the proposed amendment sought to be submitted to a
plebiscite was not even a complete amendment, but a "partial amendment"
of said section 1, which could be amended further, after its ratification, had
the same taken place, so that the aforementioned partial amendment was,
for legal purposes, no more than a provisional or temporary amendment.
Said partial amendment was predicated upon the generally accepted
contemporary construction that, under the 1935 Constitution, persons below
twenty-one (21) years of age could not exercise the right of suffrage, without
a previous amendment of the Constitution.

Upon the other hand, the question, whether 18-year-old members of barrio
assemblies may vote in barrio assembly plebiscites is, to say the least, a
debatable one. Indeed, there seems to be a conflict between the last
paragraph of said section 6 of Rep. Act No. 3590,46pursuant to which the
"majority vote of all the barrio assembly members" (which include all barrio
residents 18 years of age or over, duly registered in the list of barrio
assembly members) is necessary for the approval, in an assembly plebiscite,
of "any budgetary, supplemental appropriations or special tax ordinances,"
whereas, according to the paragraph preceding the penultimate one of said
section,47"(a)ll duly registered barrio assembly members qualified to vote" —
who, pursuant to section 10 of the same Act, must be citizens "of the
Philippines, twenty-one years of age or over, able to read and write," and
residents the barrio "during the six months immediately preceding election,
duly registered in the list of voters" and " otherwise disqualified ..." — just
like the provisions of present and past election codes of the Philippines and
Art. V of the 1935 Constitution — "may vote in the plebiscite."

I believe, however, that the apparent conflict should resolved in favor of the
21-year-old members of the assembly, not only because this interpretation is
in accord with Art. V the Constitution, but, also, because provisions of a
Constitution — particularly of a written and rigid one, like ours generally
accorded a mandatory status — unless the intention to the contrary is
manifest, which is not so as regards said Art. V — for otherwise they would
not have been considered sufficiently important to be included in the
Fundamental Law of the land.48Besides, it would be illogical, if not absurd,
believe that Republic Act No. 3590 requires, for the most
important measures for which it demands — in addition to favorable action
of the barrio council — the approval of barrio assembly through a plebiscite,
lesser qualifications than those prescribed in dealing with ordinary measures
for which such plebiscite need not be held.

It is similarly inconceivable that those who drafted the 1935 Constitution

intended section 1 of Art. V thereof to apply only to elections of public
officers, not to plebiscites for the ratification of amendments to the
Fundamental Law or revision thereof, or of an entirely new Constitution, and
permit the legislature to require lesser qualifications for such ratification,
notwithstanding the fact that the object thereof much more important — if
not fundamental, such as the basic changes introduced in the draft of the
revised Constitution adopted by the 1971 Constitutional Convention, which a
intended to be in force permanently, or, at least, for many decades, and to
affect the way of life of the nation — and, accordingly, demands greater
experience and maturity on the part of the electorate than that required for
the election of public officers,49whose average term ranges from 2 to 6 years.

It is admitted that persons 15 years of age or over, but below 21 years,

regardless of whether or not they possessed the other qualifications laid
down in both the Constitution and the present Election Code, 50and of whether
or not they are disqualified under the provisions of said Constitution and
Code,51or those of Republic Act No. 3590,52have participated and voted in the
Citizens' Assemblies that have allegedly ratified the new or revised
Constitution drafted by the 1971 Constitutional Convention.

In fact, according to the latest official data, the total number of registered
voters 21 years of age or over in the entire Philippines, available in January
1973, was less than 12 million. Yet, Proclamation No. 1102 states that
14,976,56 "members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against ... 743,869 who voted for
its rejection," whereas, on the question whether or not the people still
wanted a plebiscite to be called to ratify the new Constitution, "...
14,298,814 answered that there was no need for a plebiscite and that the
vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite." In other words, it is conceded that the number of people who
allegedly voted at the Citizens' Assemblies for exceeded the number of
registered voters under the Election Code in force in January 1973.

It is thus clear that the proceedings held in such Citizens' Assemblies — and
We have more to say on this point in subsequent pages — were
fundamentally irregular, in that persons lacking the qualifications prescribed
in section 1 of Art. V of the Constitution were allowed to vote in said
Assemblies. And, since there is no means by which the invalid votes of those
less than 21 years of age can be separated or segregated from those of the
qualified voters, the proceedings in the Citizens' Assemblies must be
considered null and void.53

It has been held that "(t)he power to reject an entire poll ... should be
exercised ... in a case where it is impossible to ascertain with reasonable
certainty the true vote," as where "it is impossible to separate the legal votes
from the illegal or spurious ... ."54

In Usman v. Commission on Elections, et al.,55We held:

Several circumstances, defying exact description and dependent mainly on
the factual milieu of the particular controversy, have the effect of destroying
the integrity and authenticity of disputed election returns and of avoiding
their prima facie value and character. If satisfactorily proven, although in a
summary proceeding, such circumstances as alleged by the affected or
interested parties, stamp the election returns with the indelible mark of
falsity and irregularity, and, consequently, of unreliability, and justify their
exclusion from the canvass.

Then, too, the 1935 Constitution requires "a majority of the votes cast" for a
proposed amendment to the Fundamental Law to be "valid" as part thereof,
and the term "votes cast" has a well-settled meaning.

The term "votes cast" ... was held in Smith v. Renville County
Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an
equivalent of "ballots cast."56

The word "cast" is defined as "to deposit formally or officially."57

It seems to us that a vote is cast when a ballot is deposited indicating a

"choice." ... The word "cast" means "deposit (a ballot) formally or
officially ... .

... In simple words, we would define a "vote cast" as the exercise on a

ballot of the choice of the voter on the measure proposed. 58

In short, said Art. XV envisages — with the term "votes cast" — choices
made on ballots — not orally or by raising — by the persons taking part in
plebiscites. This is but natural and logical, for, since the early years of the
American regime, we had adopted the Australian Ballot System, with its
major characteristics, namely, uniform official ballots prepared and furnished
by the Government and secrecy in the voting, with the advantage of keeping
records that permit judicial inquiry, when necessary, into the accuracy of the
election returns. And the 1935 Constitution has been consistently interpreted
in all plebiscites for the ratification rejection of proposed amendments
thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens'
Assemblies was and is null and void ab initio.

b. How should the plebiscite be held? (COMELEC supervision indispensable;

essential requisites)

Just as essential as compliance with said Art. V of the 19 Constitution is that

of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1 provides
that "(t)here shall be an independent Commission on Elections ... ." The
point to be stressed here is the term "independent." Indeed, why was the
term used?

In the absence of said constitutional provision as to the independence of the

Commission, would it have been depends upon either Congress or the
Judiciary? The answer must be the negative, because the functions of the
Commission — "enforcement and administration" of election laws — are
neither legislative nor judicial in nature, and, hence, beyond the field
allocated to either Congress or courts of justice. Said functions are by their
nature essentially executive, for which reason, the Commission would be
under the "control" of the President, pursuant to section 10, paragraph (1) of
Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it
(the Commission) is an "independent" body. In other words, in amending the
original 1935 Constitution, by inserting therein said Art. X, on the
Commission on Elections, the purpose was to make said
Commission independent principally of the Chief Executive.

And the reason therefor is, also, obvious. Prior to the creation of the
Commission on Elections as a constitutional organ, election laws in the
Philippines were enforced by the then Department of the Interior, through its
Executive Bureau, one of the offices under the supervision and control of said
Department. The same — like other departments of the Executive Branch of
the Government — was, in turn, under the control of the Chief Executive,
before the adoption of the 1935 Constitution, and had been — until the
abolition of said Department, sometime ago — under the control of the
President of the Philippines, since the effectivity of said Fundamental Law.
Under the provisions thereof, the Executive could so use his power of control
over the Department of the Interior and its Executive Bureau as to place the
minority party at such a great, if not decisive, disadvantage, as to deprive it,
in effect, of the opportunity to defeat the political party in power, and, hence,
to enable the same to perpetuate itself therein. To forestall this possibility,
the original 1935 Constitution was amended by the establishment of the
Commission on Elections as a constitutional body independent primarily of
the President of the Philippines.

The independence of the Commission was sought to be strengthened by the

long term of office of its members — nine (9) years, except those first
appointed59— the longest under the Constitution, second only to that of the
Auditor General60; by providing that they may not be removed from office
except by impeachment, placing them, in this respect, on the same plane as
the President, the Vice-President, the Justices of the Supreme Court and the
Auditor General; that they may not be reappointed; that their salaries, "shall
be neither increased nor diminished during their term of office"; that the
decisions the Commission "shall be subject to review by the Supreme Court"
only61; that "(n)o pardon, parole, or suspension sentence for the violation of
any election law may be granted without the favorable recommendation of
the Commission"62; and, that its chairman and members "shall not, during
the continuance in office, engage in the practice of any profession or
intervene, directly or indirectly, in the management or control of any private
enterprise which in anyway may affected by the functions of their office; nor
shall they, directly or indirectly, be financially interested in any contract with
the Government or any subdivision or instrumentality thereof." 63Thus, the
framers of the amendment to the original Constitution of 1935 endeavored
to do everything possible protect and insure the independence of each
member of the Commission.

With respect to the functions thereof as a body, section 2 of said Art. X

ordains that "(t)he Commission on Elections shall have exclusive charge of
the enforcement and administration all laws relative to the conduct of
elections," apart from such other "functions which may be conferred upon it
by law." It further provides that the Commission "shall decide, save those
involving the right to vote, all administrative question affecting elections,
including the determination of the number and location of polling places, and
the appointment of election inspectors and of other election officials." And,
to forests possible conflicts or frictions between the Commission, on one
hand, and the other offices or agencies of the executive department, on the
other, said section 2 postulates that "(a)ll law enforcement agencies and
instrumentalities of the Government, when so required by the Commission,
shall act as its deputies for the purpose of insuring free, orderly, and honest
elections." Not satisfied with this, it declares, in effect, that "(t)he decisions,
orders, and ruling of the Commission" shall not be subject to review, except
by the Supreme Court.

In accordance with the letter and spirit of said Art. X of the Constitution, Rep.
Act No. 6388, otherwise known as the Election Code of 1971, implements the
constitutional powers of the Commission on Elections and grants additional
powers thereto, some of which are enumerated in sections 5 and 6 of said
Act, quoted below.64Moreover, said Act contains, inter alia, detailed
provisions regulating contributions and other (corrupt) practices; the
establishment of election precincts; the designation and arrangement of
polling places, including voting booths, to protect the secrecy of the ballot;
formation of lists of voters, the identification and registration of voters, the
proceedings therefor, as well as for the inclusion in, or exclusion or
cancellation from said list and the publication thereof; the establishment of
municipal, provincial and files of registered voters; the composition and
appointment of board of election inspectors; the particulars of the official
ballots to be used and the precautions to be taken to insure authenticity
thereof; the procedure for the casting of votes; the counting of votes by
boards of inspectors; the rules for the appreciation of ballots and the
preparation and disposition of election returns; the constitution and
operation of municipal, provincials and national boards of canvassers; the
presentation of the political parties and/or their candidates in each election
precinct; the proclamation of the results, including, in the case of election of
public officers, election contests; and the jurisdiction of courts of justice in
cases of violation of the provisions of said Election Code and the penalties for
such violations.

Few laws may be found with such meticulous and elaborate set of provisions
aimed at "insuring free, orderly, and honest election," as envisaged in
section 2 of Art. X of the Constitution. Yet, none of the foregoing
constitutional and statutory provisions was followed by the so-called
Barangays or Citizens' Assemblies. And no reasons have been given, or
even sought to be given therefor. In many, if not most, instances, the
election were held a viva voce, thus depriving the electorate of the right to
vote secretly — one of the most, fundamental and critical features of our
election laws from time immemorial — particularly at a time when the same
was of utmost importance, owing to the existence of Martial Law.

In Glen v. Gnau,65involving the casting of many votes, openly, without

complying with the requirements of the law pertinent thereto, it was held
that the "election officers" involved "cannot be too strongly condemned"
therefor and that if they "could legally dispense with such requirement ...
they could with equal propriety dispense with all of them, including the one
that the vote shall be by secret ballot, or even by ballot at all ... ."

Moreover, upon the formal presentation to the Executive of the proposed

Constitution drafted by the 1971 Constitutional Convention, or on December
1, 1972, Presidential Decree No. 73 (on the validity of which — which was
contested in the plebiscite cases, as well as in the 1972 habeas
corpus cases66— We need not, in the case of bar, express any opinion) was
issued, calling a plebiscite, to be held on January 15, 1973, at which the
proposed Constitution would be submitted to the people for ratification or
rejection; directing the publication of said proposed Constitution; and
declaring, inter alia, that "(t)he provision of the Election Code of 1971,
insofar as they are not inconsistent" with said decree — excepting those
"regarding right and obligations of political parties and candidates" — "shall
apply to the conduct of the plebiscite." Indeed, section 2 of said Election
Code of 1971 provides that "(a)ll elections of public officers except barrio
officials and plebiscites shall be conducted in the manner provided by this
Code." General Order No. 20, dated January 7, 1973, postponing until further
notice, "the plebiscite scheduled to be held on January 15, 1973," said
nothing about the procedure to be followed in plebiscite to take place at such
notice, and no other order or decree has been brought to Our attention,
expressly or impliedly repealing the provisions of Presidential Decree 73,
insofar as said procedure is concerned.

Upon the other hand, said General Order No. 20 expressly suspended "the
provisions of Section 3 of Presidential Decree No. 73 insofar as they allow
free public discussion of proposed Constitution ... temporarily suspending
effects of Proclamation No. 1081 for the purposes of free open dabate on the
proposed Constitution ... ." This specific mention of the portions of the
decrees or orders or instructions suspended by General Order No. 20
necessarily implies that all other portions of said decrees, orders or
instructions — and, hence, the provisions of Presidential Decree No. 73
outlining the procedure to be followed in the plebiscite for ratification or
rejection of the proposed Constitution — remained in force, assuming that
said Decree is valid.

It is claimed that by virtue of Presidential Decree No. 86-A — the text of

which is quoted below67— the Executive declared, inter alia, that the
collective views expressed in the Citizens' Assemblies "shall be considered in
the formulation of national policies or programs and, wherever practicable,
shall be translated into concrete and specific decision"; that such Citizens'
Assemblies "shall consider vital national issues ... like the holding of the
plebiscite on the new Constitution ... and others in the future, which shall
serve as guide or basis for action or decision by the national government";
and that the Citizens' Assemblies "shall conduct between January 10 and 15,
1973, a referendum on important national issues, including those specified in
paragraph 2 hereof, and submit the results thereof to the Department of
Local Governments and Community Development immediately
thereafter, ... ." As in Presidential Decree No. 86, this Decree No. 86-A does
not and cannot exclude the exercise of the constitutional supervisory power
of the Commission on Elections or its participation in the proceedings in said
Assemblies, if the same had been intended to constitute the "election" or
Plebiscite required Art. V of the 1935 Constitution. The provision of Decree
No. 86-A directing the immediate submission of the result thereof to the
Department of Local Governments Community Development is not
necessarily inconsistent with, and must be subordinate to the constitutional
power of the Commission on Elections to exercise its "exclusive authority
over the enforcement and administration of all laws to the conduct of
elections," if the proceedings in the Assemblies would partake of the nature
of an "election" or plebiscite for the ratification or rejection of the proposed
Constitution.

We are told that Presidential Decree No. 86 was further amended by

Presidential Decree No. 86-B, dated 1973, ordering "that important national
issues shall from time to time; be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree No. 86-A
dated January 5, 1973 and that the initial referendum include the matter of
ratification of the Constitution by the 1971 Constitutional Convention" and
that "(t)he Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this order." As in
the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives
do not necessarily exclude exercise of the powers vested by the 1935
Constitution in the Commission on Elections, even if the Executive had the
authority to repeal Art. X of our Fundamental Law — which he does not
possess. Copy of Presidential Decree No. 86-B is appended hereto as Annex B
hereof.

The point is that, such of the Barrio Assemblies as were held took place
without the intervention of the Commission on Elections, and without
complying with the provisions of the Election Code of 1971 or even of those
of Presidential Decree No. 73. What is more, they were held under the
supervision of the very officers and agencies of the Executive Department
sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse
still, said officers and agencies of the 1935 Constitution would be favored
thereby, owing to the practical indefinite extension of their respective terms
of office in consequence of section 9 of the Transitory Provisions, found in
Art. XVII of the proposed Constitution, without any elections therefor. And the
procedure therein mostly followed is such that there is no reasonable means
of checking the accuracy of the returns files by the officers who conducted
said plebiscites. This is another patent violation of Art. of the Constitution
which can hardly be sanctioned. And, since the provisions of this article form
part of the fundamental scheme set forth in the 1935 Constitution, as
amended, to insure the "free, orderly, and honest" expression of the people's
will, the aforementioned violation thereof renders null and void the contested
proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the
same are claimed to have ratified the revised Constitution proposed by the
1971 Constitutional Convention. "... (a)ll the authorities agree that the legal
definition of an election, as well as that which is usually and ordinarily
understood by the term, is a choosing or as election by those having a right
to participate (in the selection) of those who shall fill the offices, or of the
adoption or rejection of any public measure affecting the territory involved.
15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v.
Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11
L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's
Law Dictionary.68

IV

Has the proposed Constitution aforementioned

been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?

Respondents maintain the affirmative, relying upon Proclamation No. 1102,

the validity of which is precisely being contested by petitioners herein.
Respondents claim that said proclamation is "conclusive" upon this Court, or
is, at least, entitled to full faith and credence, as an enrolled bill; that the
proposed Constitution has been, in fact, ratified, approved or adopted by the
"overwhelming" majority of the people; that Art. XV of the 1935 Constitution
has thus been "substancially" complied with; and that the Court refrain from
passing upon the validity of Proclamation No. 1102, not only because such
question is political in nature, but, also, because should the Court invalidate
the proclamation, the former would, in effect, veto the action of the people in
whom sovereignty resides and from its power are derived.

The major flaw in this process of rationalization is that it assumes, as a fact,

the very premise on which it is predicated, and which, moreover, is
contested by the petitioners. As the Supreme Court of Minnessota has aptly
put it —

... every officer under a constitutional government must act according to law
and subject to its restrictions, and every departure therefrom or disregard
thereof must subject him to the restraining and controlling of the
people, acting through the agency of the judiciary; for it must be
remembered that the people act through courts, as well as through the
executive or the Legislature. One department is just as representative as the
other, and the judiciary is the department which is charged with the special
duty of determining the limitations which the law places upon all official
action. ... .

Accordingly, the issue boils downs to whether or not the Executive acted
within the limits of his authority when he certified in Proclamation No. 1102
"that the Constitution proposed by the nineteen hundred and seventy-one
(1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines and has thereby come into
effect."

In this connection, it is not claimed that the Chief Executive had personal
knowledge of the data he certified in said proclamation. Moreover, Art. X of
the 1935 Constitution was precisely inserted to place beyond the Executive
the power to supervise or even exercise any authority whatsoever over
"all laws relative to the conduct of elections," and, hence, whether the
elections are for the choice or selection of public officers or for the
ratification or rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also, referred to in
said Art. XV as "elections".

The Solicitor General stated, in his argument before this Court, that he had
been informed that there was in each municipality a municipal association of
presidents of the citizens' assemblies for each barrio of the municipality; that
the president of each such municipal association formed part of a provincial
or city association of presidents of such municipal associations; that the
president of each one of these provincial or city associations in turn formed
part of a National Association or Federation of Presidents of such Provincial or
City Associations; and that one Francisco Cruz from Pasig, Rizal, as President
of said National Association or Federation, reported to the President of the
Philippines, in the morning of January 17, 1973, the total result of the voting
in the citizens' assemblies all over the country from January 10 to January 15,
1973. The Solicitor General further intimated that the said municipal
associations had reported the results of the citizens' assemblies in their
respective municipalities to the corresponding Provincial Association, which,
in turn, transmitted the results of the voting in the to the Department of
Local Governments and Community Development, which tabulated the
results of the voting in the citizens' assemblies throughout the Philippines
and then turned them over to Mr. Franciso Cruz, as President or acting
President of the National Association or Federation, whereupon Mr. Cruz,
acting in a ceremonial capacity, reported said results (tabulated by the
Department of Governments and Community Development) to the Chief
Executive, who, accordingly, issued Proclamation No. 1102.

The record shows, however, that Mr. Cruz was not even a member of any
barrio council since 1972, so that he could possibly have been a member on
January 17, 1973, of a municipal association of presidents of barrio or ward
citizens' assemblies, much less of a Provincial, City or National Association or
Federation of Presidents of any such provincial or city associations.

Secondly, at the conclusion of the hearing of these cases February 16, 1973,
and in the resolution of this Court of same date, the Solicitor General was
asked to submit, together with his notes on his oral argument, a true copy of
aforementioned report of Mr. Cruz to the President and of "(p)roclamation,
decree, instruction, order, regulation or circular, if any, creating or directing
or authorizing creation, establishment or organization" of said municipal,
provincial and national associations, but neither a copy of alleged report to
the President, nor a copy of any "(p)roclamation, decree, instruction, order,
regulation or circular," has been submitted to this Court. In the absence of
said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102
is devoid of any factual and legal foundation. Hence, the conclusion set forth
in the dispositive portion of said Proclamation No. 1102, to the effect that the
proposed new or revised Constitution had been ratified by majority of the
votes cast by the people, can not possibly have any legal effect or value.

The theory that said proclamation is "conclusive upon Court is clearly

untenable. If it were, acts of the Executive and those of Congress could not
possibly be annulled or invalidated by courts of justice. Yet, such is not the
case. In fact, even a resolution of Congress declaring that a given person has
been elected President or Vice-President of the Philippines as provided in the
Constitution,69is not conclusive upon the courts. It is no more than prima
facie evidence of what is attested to by said resolution. 70If assailed directly in
appropriate proceedings, such as an election protest, if and when authorized
by law, as it is in the Philippines, the Court may receive evidence and
declare, in accordance therewith, who was duly elected to the office
involved.71If prior to the creation of the Presidential Electoral Tribunal, no
such protest could be filed, it was not because the resolution of Congress
declaring who had been elected President or Vice-President
was conclusive upon courts of justice, but because there was no
law permitting the filing of such protest and declaring what court or
body would hear and decide the same. So, too, a declaration to the effect
that a given amendment to the Constitution or revised or new Constitution
has been ratified by a majority of the votes cast therefor, may be duly
assailed in court and be the object of judicial inquiry, in direct proceedings
therefor — such as the cases at bar — and the issue raised therein may and
should be decided in accordance with the evidence presented.

The case of In re McConaughy72is squarely in point. "As the Constitution

stood from the organization of the state" — of Minnessota — "all taxes were
required to be raised under the system known as the 'general property tax.'
Dissatisfaction with the results of this method and the development of more
scientific and satisfactory methods of raising revenue induced the Legislature
to submit to the people an amendment to the Constitution which provided
merely that taxes shall be uniform upon the same class of subjects. This
proposed amendment was submitted at the general election held in
November, 1906, and in due time it was certified by the state canvassing
board and proclaimed by the Governor as having been legally adopted.
Acting upon the assumption that the amendment had become a part of the
Constitution, the Legislature enacted statutes providing for a State Tax
Commission and a mortgage registry tax, and the latter statute, upon the
same theory, was held constitutional" by said Court. "The district court found
that the amendment had no in fact been adopted, and on this appeal" the
Supreme Court was "required to determine the correctness of that
conclusion."

Referring to the effect of the certification of the State Board of Canvassers

created by the Legislature and of the proclamation made by the Governor
based thereon, the Court held: "It will be noted that this board does no more
than tabulate the reports received from the various county board and add up
and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A.
(U.S.) 1221. It is settled law that the decisions of election officers, and
canvassing boards are not conclusive and that the final decision must rest
with the courts, unless the law declares that the decisions of the board shall
be final" — and there is no such law in the cases at bar. "... The correctness
of the conclusion of the state board rests upon the correctness of the returns
made by the county boards and it is inconceivable that it was intended that
this statement of result should be final and conclusive regardless of the
actual facts. The proclamation of the Governor adds nothing in the way of
conclusiveness to the legal effect of the action of the canvassing board. Its
purpose is to formally notify the people of the state of the result of the voting
as found by the canvassing board. James on Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz,73the Court reviewed the statement of results of the election
made by the canvassing board, in order that the true results could be
judicially determined. And so did the court in Rice v. Palmer.74

Inasmuch as Art. X of the 1935 Constitution places under the "exclusive"

charge of the Commission on Elections, "the enforcement and administration
of all laws relative to the conduct of elections," independently of the
Executive, and there is not even a certification by the Commission in support
of the alleged results of the citizens' assemblies relied upon in Proclamation
No. 1102 — apart from the fact that on January 17, 1973 neither the alleged
president of the Federation of Provincial or City Barangays nor the
Department of Local Governments had certified to the President the alleged
result of the citizens' assemblies all over the Philippines — it follows
necessarily that, from a constitutional and legal viewpoint, Proclamation No.
1102 is not even prima facie evidence of the alleged ratification of the
proposed Constitution.

Referring particularly to the cases before Us, it will be noted that, as pointed
out in the discussion of the preceding topic, the new or revised Constitution
proposed by the 1971 Constitutional Convention was not ratified in
accordance with the provisions of the 1935 Constitution. In fact, it has not
even been, ratified in accordance with said proposed Constitution, the
minimum age requirement therein for the exercise of the right of suffrage
being eighteen (18) years, apart from the fact that Art. VI of the proposed
Constitution requires "secret" voting, which was not observed in many, if not
most, Citizens' Assemblies. Besides, both the 1935 Constitution and the
proposed Constitution require a "majority of the votes cast" in an election or
plebiscite called for the ratification of an amendment or revision of the first
Constitution or the effectivity of the proposed Constitution, and the phrase
"votes cast" has been construed to mean "votes made in writing not orally,
as it was in many Citizens' Assemblies.75

Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts
openly that Art. XV of the Constitution has not been complied with, and since
the alleged substantial compliance with the requirements thereof partakes of
the nature of a defense set up by the other respondents in these cases, the
burden of proving such defense — which, if true, should be within their
peculiar knowledge — is clearly on such respondents. Accordingly, if despite
the extensive notes and documents submitted by the parties herein, the
members of the Court do not know or are not prepared to say whether or not
the majority of the people or of those who took part in the Citizens'
Assemblies have assented to the proposed Constitution, the logical step
would be to give due course to these cases, require the respondents to file
their answers, and the plaintiffs their reply, and, thereafter, to receive the
pertinent evidence and then proceed to the determination of the issues
raised thereby. Otherwise, we would be placing upon the petitioners the
burden of disproving a defense set up by the respondents, who have not so
far established the truth of such defense.

Even more important, and decisive, than the foregoing is the circumstance
that there is ample reason to believe that many, if not most, of the people
did not know that the Citizens' Assemblies were, at the time they were held,
plebiscites for the ratification or rejection of the proposed Constitution.
Hence, in Our decision in the plebiscite cases, We said, inter alia:

Meanwhile, or on December 17, 1972, the President had issued an order

temporarily suspending the effects of Proclamation No. 1081, for the purpose
of free and open debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite for the ratification
or rejection of the Proposed Constitution. No formal action to this effect was
taken until January 7, 1973, when General Order No. 20 was issued, directing
"that the plebiscite scheduled to be held on January 15, 1973, be postponed
until further notice." Said General Order No. 20, moreover, "suspended in the
meantime" the "order of December 17, 1972, temporarily suspending the
effects of Proclamation No. 1081 for purposes of free and open debate on the
proposed Constitution.

In view of these events relative to the postponement of the aforementioned

plebiscite, the Court deemed it fit to refrain, for the time being, from
deciding the aforementioned cases, for neither the date nor the conditions
under which said plebiscite would be held were known or announced
officially. Then again, Congress was, pursuant to the 1935 Constitution,
scheduled to meet in regular session on January 22, 1973, and since the
main objection to Presidential Decree No. 73 was that the President does not
have the legislative authority to call a plebiscite and appropriate funds
therefor, which Congress unquestionably could do, particularly in view of the
formal postponement of the plebiscite by the President — reportedly after
consultation with, among others, the leaders of Congress and the
Commission on Elections — the Court deemed it more imperative to defer its
final action on these cases.

And, apparently, the parties in said cases entertained the same belief, for, on
December 23, 1972 — four (4) days after the last hearing of said cases 76—
the President announced the postponement of the plebiscite scheduled by
Presidential Decree No. 73 to be held on January 15, 1973, after consultation
with the Commission on Elections and the leaders of Congress, owing to
doubts on the sufficiency of the time available to translate the proposed
Constitution into some local dialects and to comply with some pre-electoral
requirements, as well as to afford the people a reasonable opportunity to be
posted on the contents and implications of said transcendental document.
On January 7, 1973, General Order No. 20 was issued formally, postponing
said plebiscite "until further notice." How can said postponement be
reconciled with the theory that the proceedings in the Citizens' Assemblies
scheduled to be held from January 10 to January 15, 1973, were "plebiscites,"
in effect, accelerated, according to the theory of the Solicitor General, for the
ratification of the proposed Constitution? If said Assemblies were meant to
be the plebiscites or elections envisaged in Art. XV of the Constitution, what,
then, was the "plebiscite" postponed by General Order No. 20? Under these
circumstances, it was only reasonable for the people who attended such
assemblies to believe that the same were not an "election" or plebiscite for
the ratification or adoption of said proposed Constitution.

And, this belief is further bolstered up by the questions propounded in the

Citizens' Assemblies, namely:

[1] Do you like the New Society?

[2] Do you like the reforms under martial law?

[3] Do you like Congress again to hold sessions?

[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos is running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional
question.]

[6] Do you approve of the citizens assemblies as the base of popular

government to decide issues of national interests?

[7] Do you approve of the new Constitution?

[8] Do you want a plebiscite to be called to ratify the new Constitution?

[9] Do you want the elections to be held in November, 1973 in accordance

with the provisions of the 1935 Constitution?
[10] If the elections would not be held, when do you want the next elections
to be called?

[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a

plebiscite for the ratification of a proposed Constitution or of a proposed
amendment thereto. Secondly, neither is the language of question No. 7 —
"Do you approve the new Constitution?" One approves "of" the act of another
which does not need such approval for the effectivity of said act, which the
first person, however, finds to be good, wise satisfactory. The approval of the
majority of the votes cast in plebiscite is, however, essential for an
amendment to the Constitution to be valid as part thereof. Thirdly, if the
proceedings in the Citizens' Assemblies constituted a plebiscite question No.
8 would have been unnecessary and improper, regardless of whether
question No. 7 were answered affirmatively or negatively. If the majority of
the answers to question No. 7 were in the affirmative, the proposed
Constitution would have become effective and no other plebiscite could be
held thereafter in connection therewith, even if the majority of the answers
to question No. 8 were, also, in the affirmative. If the majority of the answers
to question No. 7 were in the negative, neither may another plebiscite be
held, even if the majority of the answers to question No. 8 were in the
affirmative. In either case, not more than one plebiscite could be held for the
ratification or rejection of the proposed Constitution. In short, the insertion of
said two (2) questions — apart from the other questions adverted to above —
indicates strongly that the proceedings therein did not partake of the nature
of a plebiscite or election for the ratification or rejection of the proposed
Constitution.

Indeed, I can not, in good conscience, declare that the proposed Constitution
has been approved or adopted by the people in the citizens' assemblies all
over the Philippines, when it is, to my mind, a matter of judicial knowledge
that there have been no such citizens' assemblies in many parts of Manila
and suburbs, not to say, also, in other parts of the Philippines. In a letter of
Governor Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief
Executive, the former reported:

... This report includes a resumee (sic) of the activities we undertook in

effecting the referendum on the eleven questions you wanted our
people consulted on and the Summary of Results thereof for each
municipality and for the whole province.
xxx xxx xxx

... Our initial plans and preparations, however, dealt only on the original five
questions. Consequently, when we received an instruction on January 10 to
change the questions, we urgently suspended all scheduled Citizens
Assembly meetings on that day and called all Mayors, Chiefs of Offices and
other government officials to another conference to discuss with them the
new set of guidelines and materials to be used.

On January 11, ... another instruction from the top was received to include
the original five questions among those to be discussed and asked in the
Citizens' Assembly meetings. With this latest order, we again had to make
modifications in our instructions to all those managing and supervising the
holding of the Citizens' Assembly meetings throughout the province. ... Aside
from the coordinators we had from the Office of the Governor, the splendid
cooperation and support extended by almost all government officials and
employees in the province, particularly of the Department of Education, PC
and PACD personnel, provided us with enough hands to trouble shoot and
implement sudden changes in the instructions anytime and anywhere
needed. ...

... As to our people, in general, their enthusiastic participation showed their

preference and readiness to accept this new method of government to
people consultation in shaping up government policies.

Thus, as late as January 10, 1973, the Bataan officials had

to suspend "all scheduled Citizens' Assembly meetings ..." and call all
available officials "... to discuss with them the new set of guidelines and
materials to be used ... ." Then, "on January 11 ... another instruction from
the top was received to include the original five questions among those
be discussed and asked in the Citizens' Assembly meetings. With this latest
order, we again had to make modifications in our instructions to all those
managing and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic
participation showed their preference and readiness to accept the new
method of government to people consultation in shaping up government
policies."

This communication manifestly shows: 1) that, as late a January 11, 1973,

the Bataan officials had still to discuss — not put into operation — means
and ways to carry out the changing instructions from the top on how to
organize the citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies; 2) that the
assemblies would involve no more than consultations or dialogues between
people and government — not decisions be made by the people; and 3) that
said consultations were aimed only at "shaping up government policies" and,
hence could not, and did not, partake of the nature of a plebiscite for the
ratification or rejection of a proposed amendment of a new or revised
Constitution for the latter does not entail the formulation of a policy of the
Government, but the making of decision by the people on the new way of
life, as a nation, they wish to have, once the proposed Constitution shall
have been ratified.

If this was the situation in Bataan — one of the provinces nearest to Manila
— as late as January 11, 1973, one can easily imagine the predicament of
the local officials and people in the remote barrios in northern and southern
Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact,
several members of the Court, including those of their immediate families
and their household, although duly registered voters in the area of Greater
Manila, were not even notified that citizens' assemblies would be held in the
places where their respective residences were located. In the Prohibition and
Amendment case,77attention was called to the "duty cast upon the court
of taking judicial cognizance of anything affecting the existence and validity
of any law or portion of the Constitution ... ." In line with its own
pronouncement in another case, the Federal Supreme Court of the United
States stressed, in Baker v. Carr,78that "a court is not at liberty to shut its
eyes to an obvious mistake, when the validity of the law depends upon the
truth of what is declared."

In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the negative.

Have the people acquiesced in the proposed Constitution?

It is urged that the present Government of the Philippines is now and has
been run, since January 17, 1971, under the Constitution drafted by the 1971
Constitutional Convention; that the political department of the Government
has recognized said revised Constitution; that our foreign relations are being
conducted under such new or revised Constitution; that the Legislative
Department has recognized the same; and that the people, in general, have,
by their acts or omissions, indicated their conformity thereto.
As regards the so-called political organs of the Government, gather that
respondents refer mainly to the offices under the Executive Department. In a
sense, the latter performs some functions which, from a constitutional
viewpoint, are politics in nature, such as in recognizing a new state or
government, in accepting diplomatic representatives accredited to our
Government, and even in devising administrative means and ways to better
carry into effect. Acts of Congress which define the goals or objectives
thereof, but are either imprecise or silent on the particular measures to be
resorted to in order to achieve the said goals or delegate the power to do so,
expressly or impliedly, to the Executive. This, notwithstanding, the political
organ of a government that purports to be republican is essentially the
Congress or Legislative Department. Whatever may be the functions
allocated to the Executive Department — specially under a written, rigid
Constitution with a republican system of Government like ours — the role of
that Department is inherently, basically and fundamentally executive in
nature — to "take care that the laws be faithfully executed," in the language
of our 1935 Constitution.79

Consequently, I am not prepared to concede that the acts the officers and
offices of the Executive Department, in line with Proclamation No. 1102,
connote a recognition thereof o an acquiescence thereto. Whether they
recognized the proposed Constitution or acquiesce thereto or not is
something that cannot legally, much less necessarily or even normally, be
deduced from their acts in accordance therewith, because the are bound to
obey and act in conformity with the orders of the President, under whose
"control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081
placing the Philippines under Martial Law. Besides, by virtue of the very
decrees, orders and instructions issued by the President thereafter, he had
assumed all powers of Government — although some question his authority
to do so — and, consequently, there is hardly anything he has done since the
issuance of Proclamation No. 1102, on January 17, 1973 — declaring that the
Constitution proposed by the 1971 Constitutional Convention has been
ratified by the overwhelming majority of the people — that he could not do
under the authority he claimed to have under Martial Law, since September
21, 1972, except the power of supervision over inferior courts and its
personnel, which said proposed Constitution would place under the Supreme
Court, and which the President has not ostensibly exercised, except as to
some minor routine matters, which the Department of Justice has continued
to handle, this Court having preferred to maintain the status quo in
connection therewith pending final determination of these cases, in which
the effectivity of the aforementioned Constitution is disputed.

Then, again, a given department of the Government cannot generally be said

to have "recognized" its own acts. Recognition normally connotes the
acknowledgment by a party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies with the commands
of a superior officer or office, under whose supervision and control he or it is,
the former merely obeys the latter. Strictly speaking, and from a legal and
constitutional viewpoint, there is no act of recognition involved therein.
Indeed, the lower officer or office, if he or it acted otherwise, would just be
guilty of insubordination.

Thus, for instance, the case of Taylor v. Commonwealth80— cited by

respondents herein in support of the theory of the people's acquiescence —
involved a constitution ordained in 1902 and "proclaimed by a convention
duly called by a direct vote of the people of the state to revise and amend
the Constitution of 1869. The result of the work of that Convention has been
recognized, accepted and acted upon as the only valid Constitution of the
State" by —

1. The "Governor of the State in swearing fidelity to it and proclaiming it, as

directed thereby";

2. The "Legislature in its formal official act adopting a joint resolution, July
15, 1902, recognizing the Constitution ordained by the Convention ...";

3. The "individual oaths of its members to support it, and by its having been
engaged for nearly a year, in legislating under it and putting its provisions
into operation ...";

4. The "judiciary in taking the oath prescribed thereby to support it and by

enforcing its provisions ..."; and

5. The "people in their primary capacity by peacefully accepting it and

acquiescing in it, by registering as voters under it to the extent of thousands
throughout the State, and by voting, under its provisions, at a general
election for their representatives in the Congress of the United States."

Note that the New Constitution of Virginia, drafted by a convention whose

members were elected directly by the people, was not submitted to the
people for ratification or rejection thereof. But, it was recognized, not by the
convention itself, but by other sectors of the Government, namely, the
Governor; the Legislature — not merely by individual acts of its members,
but by formal joint resolution of its two (2) chambers; by the judiciary; and
by the people, in the various ways specified above. What is more, there
was no martial law. In the present cases, none of the foregoing acts of
acquiescence was present. Worse still, there is martial law, the strict
enforcement of which was announced shortly before the alleged citizens'
assemblies. To top it all, in the Taylor case, the effectivity of the contested
amendment was not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the Government,
and complied with by the people who participated in the elections held
pursuant to the provisions of the new Constitution. In the cases under
consideration, the legality of Presidential Decree No. 73 calling a plebiscite to
be held on January 15, 1973, was impugned as early as December 7, 1972,
or five (5) weeks before the scheduled plebiscite, whereas the validity of
Proclamation No. 1102 declaring on January 17, 1973, that the proposed
Constitution had been ratified — despite General Order No. 20, issued on
January 7, 1972, formally and officially suspending the plebiscite until further
notice — was impugned as early as January 20, 1973, when L-36142 was
filed, or three (3) days after the issuance of Proclamation No. 1102.

It is further alleged that a majority of the members of our House of

Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad Interim
Assembly established in the Transitory Provisions of said Constitution.
Individual acts of recognition by members of our legislature, as well as of
other collegiate bodies under the government, are invalid as acts of said
legislature or bodies, unless its members have performed said acts
in session duly assembled, or unless the law provides otherwise, and there is
no such law in the Philippines. This is a well-established principle of
Administrative Law and of the Law of Public Officers, and no plausible reason
has been adduced to warrant departure therefrom.81

Indeed, if the members of Congress were generally agreeable to the

proposed Constitution, why did it become necessary to padlock its premises
to prevent its meeting in session on January 22, 1973, and thereafter as
provided in the 1935 Constitution? It is true that, theoretically, the members
of Congress, if bent on discharging their functions under said Constitution,
could have met in any other place, the building in which they perform their
duties being immaterial to the legality of their official acts. The force of this
argument is, however, offset or dissipated by the fact that, on or about
December 27, 1972, immediately after a conference between the Executive,
on the one hand, and members of Congress, on the other, some of whom
expressed the wish to meet in session on January 22, 1973, as provided in
the 1935 Constitution, a Daily Express columnist (Primitivo Mijares)
attributed to Presidential Assistant Guillermo de Vega a statement to the
effect that "'certain members of the Senate appear to be missing the point in
issue' when they reportedly insisted on taking up first the question of
convening Congress." The Daily Express of that date,82likewise, headlined, on
its front page, a "Senatorial Plot Against 'Martial Law Government'
Disclosed". Then, in its issue of December 29, 1972, the same paper imputed
to the Executive an appeal "to diverse groups involved in a conspiracy to
undermine" his powers" under martial law to desist from provoking a
constitutional crisis ... which may result in the exercise by me of authority I
have not exercised."

No matter how good the intention behind these statement may have been,
the idea implied therein was too clear an ominous for any member of
Congress who thought of organizing, holding or taking part in a session of
Congress, not to get the impression that he could hardly do so without
inviting or risking the application of Martial Law to him. Under these
conditions, I do not feel justified in holding that the failure of the members of
Congress to meet since January 22, 1973, was due to their recognition,
acquiescence in or conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.

For the same reasons, especially because of Proclamation No. 1081, placing
the entire Philippines under Martial Law, neither am I prepared to declare
that the people's inaction as regards Proclamation No. 1102, and their
compliance with a number of Presidential orders, decrees and/or instructions
— some or many of which have admittedly had salutary effects — issued
subsequently thereto amounts, constitutes or attests to a ratification,
adoption or approval of said Proclamation No. 1102. In the words of the Chief
Executive, "martial law connotes power of the gun, meant coercion by the
military, and compulsion and intimidation."83The failure to use the gun
against those who comply with the orders of the party wielding the weapon
does not detract from the intimidation that Martial Law necessarily connotes.
It may reflect the good, reasonable and wholesome attitude of the person
who has the gun, either pointed at others, without pulling the trigger, or
merely kept in its holster, but not without warning that he may or would use
it if he deemed it necessary. Still, the intimidation is there, and inaction or
obedience of the people, under these conditions, is not necessarily an act of
conformity or acquiescence. This is specially so when we consider that the
masses are, by and large, unfamiliar with the parliamentary system, the new
form of government introduced in the proposed Constitution, with the
particularity that it is not even identical to that existing in England and other
parts of the world, and that even experienced lawyers and social
scientists find it difficult to grasp the full implications of some provisions
incorporated therein.

As regards the applicability to these cases of the "enrolled bill" rule, it is well
to remember that the same refers to a document certified to the President —
for his action under the Constitution — by the Senate President and the
Speaker of the House of Representatives, and attested to by the Secretary of
the Senate and the Secretary of the House of Representatives, concerning
legislative measures approved by the two Houses of Congress. The argument
of the Solicitor General is, roughly, this: If the enrolled bill is entitled to full
faith and credence and, to this extent, it is conclusive upon the President and
the judicial branch of the Government, why should Proclamation No. 1102
merit less consideration than in enrolled bill?

Before answering this question, I would like to ask the following: If, instead of
being certified by the aforementioned officers of Congress, the so-called
enrolled bill were certified by, say, the President of the Association of Sugar
Planters and/or Millers of the Philippines, and the measure in question were a
proposed legislation concerning Sugar Plantations and Mills sponsored by
said Association, which even prepared the draft of said legislation, as well as
lobbied actually for its approval, for which reason the officers of the
Association, particularly, its aforementioned president — whose honesty and
integrity are unquestionable — were present at the deliberations in Congress
when the same approved the proposed legislation, would the enrolled bill
rule apply thereto? Surely, the answer would have to be in the negative.
Why? Simply, because said Association President has absolutely no official
authority to perform in connection therewith, and, hence, his certification is
legally, as good as non-existent.

Similarly, a certification, if any, of the Secretary of the Department of Local

Governments and Community Development about the tabulated results of
the voting in the Citizens Assemblies allegedly held all over the Philippines —
and the records do not show that any such certification, to the President of
the Philippines or to the President Federation or National Association of
presidents of Provincial Associations of presidents of municipal association
presidents of barrio or ward assemblies of citizens — would not, legally and
constitutionally, be worth the paper on which it is written. Why? Because
said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a
proposed amendment or revision of the Constitution and, hence, to tabulate
the results thereof. Worse still, it is the department which, according to
Article X of the Constitution, should not and must not be all participate in
said plebiscite — if plebiscite there was.

After citing approvingly its ruling in United States v. Sandoval,84the Highest

Court of the United States that courts "will not stand impotent before an
obvious instance of a manifestly unauthorized exercise of power."85

I cannot honestly say, therefore, that the people impliedly or expressly

indicated their conformity to the proposed Constitution.

VI

Are the Parties entitled to any relief?

Before attempting to answer this question, a few words be said about the
procedure followed in these five (5) cases. In this connection, it should be
noted that the Court has not decided whether or not to give due course to
the petitions herein or to require the respondents to answer thereto. Instead,
it has required the respondents to comment on the respective petitions —
with three (3) members of the voting to dismiss them outright — and then
considers comments thus submitted by the respondents as motions to
dismiss, as well as set the same for hearing. This was due to the
transcendental nature of the main issue raised, the necessity of deciding the
same with utmost dispatch, and the main defense set up by respondents
herein, namely, the alleged political nature of said issue, placing the same,
according to respondents, beyond the ambit of judicial inquiry and
determination. If this defense was sustained, the cases could readily be
dismissed; but, owing to the importance of the questions involved, a
reasoned resolution was demanded by public interest. At the same time,
respondents had cautioned against a judicial inquiry into the merits of the
issues posed on account of the magnitude of the evil consequences, it was
claimed, which would result from a decision thereon, if adverse to the
Government.

As a matter of fact, some of those issues had been raised in the plebiscite
cases, which were dismissed as moot and academic, owing to the issuance of
Proclamation No. 1102 subsequently to the filing of said cases, although
before the rendition of judgment therein. Still one of the members of the
Court (Justice Zaldivar) was of the opinion that the aforementioned issues
should be settled in said cases, and he, accordingly, filed an opinion passing
upon the merits thereof. On the other hand, three (3) members of the Court
— Justices Barredo, Antonio and Esguerra — filed separate opinions favorable
to the respondents in the plebiscite cases, Justice Barredo holding "that the
1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution in force by virtue of Proclamation
1102."86When the petitions at bar were filed, the same three (3) members of
the Court, consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share, however, either view,
believing that the main question that arose before the rendition of said
judgment had not been sufficiently discussed and argued as the nature and
importance thereof demanded.

The parties in the cases at bar were accordingly given every possible
opportunity to do so and to elucidate on and discuss said question. Thus,
apart from hearing the parties in oral argument for five (5) consecutive days
— morning and afternoon, or a total of exactly 26 hours and 31 minutes —
the respective counsel filed extensive notes on their or arguments, as well as
on such additional arguments as they wished to submit, and reply notes or
memoranda, in addition to rejoinders thereto, aside from a sizeable number
of document in support of their respective contentions, or as required by the
Court. The arguments, oral and written, submitted have been so extensive
and exhaustive, and the documents filed in support thereof so numerous and
bulky, that, for all intents and purposes, the situation is as if — disregarding
forms — the petitions had been given due course and the cases had been
submitted for decision.

Accordingly, the majority of the members of the Court believe that they
should express their views on the aforementioned issues as if the same were
being decided on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes cast and the tenor
of the resolution, in the last pages hereof, despite the fact that technically
the Court has not, as yet, formally given due course to the petitions herein.

And, now, here are my views on the reliefs sought by the parties.

In L-36165, it is clear that we should not issue the writ of mandamus prayed
for against Gil J. Puyat and Jose Roy, President and President Pro Tempore
respectively of the Senate, it being settled in our jurisdiction, based upon the
theory of separation of powers, that the judiciary will not issue such writ to
the head of a co-equal department, like the aforementioned officers of the
Senate.
In all other respects and with regard to the other respondent in said case, as
well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that the
petitions therein should be given due course, there being more than prima
facie showing that the proposed Constitution has not been ratified in
accordance with Article XV of the 1935 Constitution, either strictly,
substantially, or has been acquiesced in by the people or majority thereof;
that said proposed Constitution is not in force and effect; and that the 1935
Constitution is still the Fundamental Law of the Land, without prejudice to
the submission of said proposed Constitution to the people at a plebiscite for
its ratification or rejection in accordance with Articles V, X and XV of the
1935 Constitution and the provisions of the Revised Election Code in force at
the time of such plebiscite.

Perhaps others would feel that my position in these cases overlooks what
they might consider to be the demands of "judicial statesmanship," whatever
may be the meaning of such phrase. I am aware of this possibility, if not
probability; but "judicial statesmanship," though consistent with Rule of
Law, cannot prevail over the latter. Among consistent ends or consistent
values, there always is a hierarchy, a rule of priority.

We must realize that the New Society has many achievements which would
have been very difficult, if not impossible, to accomplish under the old
dispensation. But, in and for the judiciary, statesmanship should not prevail
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law
and faithful adherence thereto are basic, fundamental and essential parts of
statesmanship itself.

Resume of the Votes Cast and the Court's Resolution

As earlier stated, after the submittal by the members of the Court of their
individual opinions and/or concurrences as appended hereto, the writer will
now make, with the concurrence of his colleagues, a resume or summary of
the votes cast by each of them.

It should be stated that by virtue of the various approaches and views

expressed during the deliberations, it was agreed to synthesize the basic
issues at bar in broad general terms in five questions for purposes of taking
the votes. It was further agreed of course that each member of the Court
would expound in his individual opinion and/or concurrence his own approach
to the stated issues and deal with them and state (or not) his opinion thereon
singly or jointly and with such priority, qualifications and modifications as he
may deem proper, as well as discuss thereon other related issues which he
may consider vital and relevant to the cases at bar.

The five questions thus agreed upon as reflecting the basic issues herein
involved are the following:

1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or

political and therefore non-justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been

ratified validly (with substantial, if not strict, compliance) conformably to the
applicable constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or

without valid ratification) by the people?

4. Are petitioners entitled to relief? and

5. Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual views expressed by the
members of the Court in their respect opinions and/or concurrences, are as
follows:

1. On the first issue involving the political-question doctrine Justices

Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6)
members of the Court, hold that the issue of the validity of Proclamation No.
1102 presents a justiciable and non-political question. Justices Makalintal and
Castro did not vote squarely on this question, but, only inferentially, in their
discussion of the second question. Justice Barredo qualified his vote, stating
that "inasmuch as it is claimed there has been approval by the people, the
Court may inquire into the question of whether or not there has actually
been such an approval, and, in the affirmative, the Court should keep hands-
off out of respect to the people's will, but, in negative, the Court may
determine from both factual and legal angles whether or not Article XV of the
1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra,
or three (3) members of the Court hold that the issue is political and "beyond
the ambit of judicial inquiry."

2. On the second question of validity of the ratification, Justices Makalintal,

Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the
Court also hold that the Constitution proposed by the 1971 Constitutional
Convention was not validly ratified in accordance with Article XV, section 1 of
the 1935 Constitution, which provides only one way for ratification, i.e., "in
an election or plebiscite held in accordance with law and participated in only
by qualified and duly registered voters.87

Justice Barredo qualified his vote, stating that "(A)s to whether or not the
1973 Constitution has been validly ratified pursuant to Article XV, I still
maintain that in the light of traditional concepts regarding the meaning and
intent of said Article, the referendum in the Citizens' Assemblies, specially in
the manner the votes therein were cast, reported and canvassed, falls short
of the requirements thereof. In view, however, of the fact that I have no
means of refusing to recognize as a judge that factually there was voting and
that the majority of the votes were for considering as approved the 1973
Constitution without the necessity of the usual form of plebiscite followed in
past ratifications, I am constrained to hold that, in the political sense, if not
in the orthodox legal sense, the people may be deemed to have cast their
favorable votes in the belief that in doing so they did the part required of
them by Article XV, hence, it may be said that in its political aspect, which is
what counts most, after all, said Article has been substantially complied with,
and, in effect, the 1973 Constitution has been constitutionally ratified."

Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court
hold that under their view there has been in effect substantial compliance
with the constitutional requirements for valid ratification.

3. On the third question of acquiescence by the Filipino people in the

aforementioned proposed Constitution, no majority vote has been reached
by the Court.

Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that "the people have already accepted the 1973
Constitution."

Two (2) members of the Court, namely, Justice Zaldivar and myself hold that
there can be no free expression, and there has even been no expression, by
the people qualified to vote all over the Philippines, of their acceptance or
repudiation of the proposed Constitution under Martial Law. Justice Fernando
states that "(I)f it is conceded that the doctrine stated in some American
decisions to the effect that independently of the validity of the ratification, a
new Constitution once accepted acquiesced in by the people must be
accorded recognition by the Court, I am not at this stage prepared to state
that such doctrine calls for application in view of the shortness of time that
has elapsed and the difficulty of ascertaining what is the mind of the people
in the absence of the freedom of debate that is a concomitant feature of
martial law."88

Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are joined
by Justice Teehankee in their statement that "Under a regime of martial law,
with the free expression of opinions through the usual media vehicle
restricted, (they) have no means of knowing, to the point of judicial certainty,
whether the people have accepted the Constitution." 89

4. On the fourth question of relief, six (6) members of the Court, namely,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to
DISMISS the petition. Justice Makalintal and Castro so voted on the strength
of their view that "(T)he effectivity of the said Constitution, in the final
analysis, is the basic and ultimate question posed by these cases to resolve
which considerations other than judicial, an therefore beyond the
competence of this Court,90are relevant and unavoidable."91

Four (4) members of the Court, namely, Justices Zaldivar, Fernando,

Teehankee and myself voted to deny respondents' motion to dismiss and to
give due course to the petitions.

5. On the fifth question of whether the new Constitution of 1973 is in force:

Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio
and Esguerra hold that it is in force by virtue of the people's acceptance
thereof;

Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando
and Teehankee cast no vote thereon on the premise stated in their votes on
the third question that they could not state with judicial certainty whether
the people have accepted or not accepted the Constitution; and

Two (2) members of the Court, namely, Justice Zaldivar and myself voted
that the Constitution proposed by the 1971 Constitutional Convention is not
in force;

with the result that there are not enough votes to declare that the new
Constitution is not in force.

ACCORDINGLY, by virtue of the majority of six (6) votes of Justices

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4)
dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect.

It is so ordered.

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Footnotes

1 Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.

2 Chief Justice Concepcion and Justices Fernando and Teehankee.

3 Justice Zaldivar.

4 Case G.R. No. L-36164.

5 Case G.R. No. L-36236.

6 Case G.R. No. L-36293.

7 Who withdrew as petitioner on January 25, 1973.

8 Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. Now,

after the withdrawal of the latter, the first two (2) only.

9 Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada-Kalaw.

10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.

11 Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v.

Commission on Elections, L-28196 & L-28224, Nov. 9, 1967. Emphasis ours.

12 Art. VI, sec. 20(1), Constitution.

13 Art. VII, sec. 10(7), Constitution.

14 Emphasis ours.

15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973.

16 In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. Gilchrist,

59 So. Rep. 963; McAdams v. Henley, 273 S.W. 355; Egbert v. City of
Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24 N.W. 2d. 907; State ex rel. Landis,
Atty. Gen. v. Thompson, 163 So. Rep. 270; St. Louis Brewing Association v.
Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E. Rep. 1, 18; Johnson v. Craft,
87 So. Rep. 375.

17 Mun. of Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing,

et al., L-35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov.
25, 1967; Gonzales v. Commission on Elections, L-28224, Nov. 29, 1967; Bara
Lidasan v. COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-
22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-19870, Mar. 18, 1967;
Pelayo v. Auditor General, L-23825, Dec. 24, 1965; Philippine Constitution
Association v. Gimenez, L-23326, Dec. 18, 1965; Mun. of La Carlota v.
NAWASA, L-20232, Sept. 30, 1964; Guevara v. Inocentes, L-25577, Mar. 15,
1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Secretary of
Justice, L-20370, Nov. 29, 1963; Mun. of Naguilian v. NAWASA, L-18540, Nov.
29, 1963; Herrera v. Liwag, L-20079, Sept. 30, 1963; Aytona v. Castillo, L-
19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al., L-15476, Sept. 19,
1961; Tan v. De Leon, et al., L-15254, Sept. 16, 1961; Macias v. Commission
on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing &
Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L-
15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, July 31, 1961;
Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L-14738, July 31,
1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L-14759, July
31, 1961; Liwanag v. Central Azucarera Don Pedro, L-15372, July 31, 1961;
Lecura v. Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen
Bee Trading Co., et al., L-15693, July 31, 1961; Pascual v. Sec. of Public Works
and Communications, L-10405, Dec. 29, 1960; Corominas, Jr. v. Labor
Standards Commission, L-14837, June 30, 1961; City of Baguio v. NAWASA, L-
12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892, April 20,1960;
Montes v. Civil Service Board of Appeals, 101 Phil. 490, Rutter v. Esteban, 93
Phil. 68; Araneta v. Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41 Phil.
322.

18 G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-

35953, L-35961, L-35965 and L-35979, decided on January 22, 1973..

19 L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M. Garcia;

L-33965, Rogelio V. Arienda v. Secretary of National Defense, et al.; L-33973,
Luzvimindo David v. Gen. Eduardo Garcia, et al.; L-33962, Felicidad G.
Prudente v. General Manuel Yan, et al.; L-34004, Domingo E. de Lara v.
Brigadier-General Eduardo M. Garcia; L-34013, Reynaldo Rimando v. Brig.
Gen. Eduardo M. Garcia; L-34039, Carlos C. Rabago v. Brig. Gen. Eduardo
Garcia, et al.; L-34265, Antolin Oreta, Jr. v. Gen. Eduardo Garcia, et al.; and L-
34339, Gary B. Olivar, et al. v. Gen. Eduardo Garcia, et al.

20 5 Phil. 87.

21 91 Phil. 882.

22 G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.

23 78 Phil. 1.

24 Supra.

25 In re McConaughy, 119 N.W. 408, 417.

26 103 Phil. 1051, 1067.

27 119 N.W. 408, 411, 417.

28 92 Ky. 589,18 S.W. 522, 523.

29 Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep.
609; State v. Tufly, 19 Nev. 391, 12 Pac. Rep. 835.

30 Angara v. Electoral Commission, 63 Phil. 139, 157. Emphasis ours.

31 12 L. ed. 581 (1849).

32 Luther v. Borden, supra, p. 598. Emphasis ours.

33 In re McConaughy, supra, p. 416. Emphasis ours.

34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).

35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).

36 In re McConaughy, 119 N.W. 408, 415. Emphasis ours. The observation as

to the uniformity of authorities on the matter has been reiterated in Winget
v. Holm, 244 N.W. 329, 332.

37 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d 663, 686, 82 S. Ct. 691.

38 See p. 5 of the Petition.

39 Emphasis ours.

40 The Framing of the Philippine Constitution, by Aruego, Vol. I p. 215.

41 The Framing of the Philippine Constitution, by Aruego, Vol. I pp. 215, 221,
227-228.
42 Ibid., pp. 222-224.

43 Id., pp. 224-227.

44 SEC. 431. Qualifications prescribed for voters. — Every male person who
is not a citizen or subject of a foreign power, twenty-one years of age or
over, who shall have been a resident of the Philippines for one year and of
the municipality in which he shall offer to vote for six months next preceding
the day of voting is entitled to vote in all elections if comprised within either
of the following three classes:

"(a) Those who, under the laws in force in the Philippine Islands upon the
twenty-eighth day of August, nineteen hundred and sixteen, were legal
voters and had exercised the right of suffrage.

"(b) Those who own real property to the value of five hundred pesos,
declared in their name for taxation purposes for a period not less than one
year prior to the date of the election, or who annually pay thirty pesos or
more of the established taxes.

"(c) Those who are able to read and write either Spanish, English, or a native
language.

"SEC. 432. Disqualifications. — The following persons shall be disqualified

from voting:

"(a) Any person who, since the thirteenth day of August, eighteen hundred
and ninety-eight, has been sentenced by final judgment to suffer not less
than eighteen months of imprisonment, such disability not having been
removed by plenary pardon.

"(b) Any person who has violated an oath of allegiance taken by him to the
United States.ᇈ WᑭHIL

"(c) Insane or feeble-minded persons.

"(d) Deaf-mutes who cannot read and write.

"(e) Electors registered under subsection (c) of the next preceding section
who, after failing to make a sworn statement to the satisfaction of the board
of inspectors at any of its two meetings for registration and revision, that
they are incapacitated preparing their ballots due to permanent physical
disability, present themselves at the hour of voting as incapacitated,
irrespective whether such incapacity be real or feigned."

45 L-34150, October 16 and November 4, 1971.

46 "For taking action on any of the above enumerated measures, majority
vote of all the barrio assembly members registered in the list of the barrio
secretary is necessary."

47 "All duly registered barrio assembly members qualified to vote may vote
in the plebiscite. Voting procedures may be made either in writing as in
regular elections, and/or declaration by the voters to the board of election
tellers. The board of election tellers shall be the same board envisioned by
section 8, paragraph 2 of this Act, in case of vacancies in this body, the
barrio council may fill the same."

48 Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113

N.W. 1071; Ellingham v. Dye (1912), 178 Ind. 336, 99 N.E. 1; State v. Marcus,
160 Wis. 354, 152 N.W. 419.

49 In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that
"when a state constitution enumerates and fixes the qualifications of
those who may exercise the right of suffrage, the legislature cannot take
from nor add to said qualifications unless the power to do so is conferred
upon it by the constitution itself."

Since suffrage, according to Webster, is a voice given not only in the choice
of a man for an office or trust, but, also, in deciding a controverted question,
it follows, considering the said ruling in Alcantara, that the constitutional
qualifications for voters apply equally to voters in elections to public office
and to voters in a plebiscite.

Similarly, the Revised Election Code provides in its section 2 that all elections
of public officers by the people and all votings in connection with
plebiscites shall be conducted in conformity with the provisions of said Code.

50 Republic Act No. 6388, section 101 of which, in part, provides:

"SEC. 101. Qualifications prescribed for a voter. — Every citizen of the

Philippines, not otherwise disqualified by law, twenty-one years of age or
over, able to read and write, who shall have resided in the Philippines for one
year and in the city, municipality or municipal district wherein he proposes to
vote for at least six months immediately preceding the election, may vote at
any election.

xxx xxx xxx

51 "SEC. 102. Disqualifications. — The following persons shall not be

qualified to vote:
"(a) Any person who has been sentenced by final judgment to suffer an
imprisonment of not less than one year, such disability not having been
removed by plenary pardon: Provided, however, That any person disqualified
to vote under this paragraph shall automatically reacquire the right to vote
upon expiration of ten years after service of sentence unless during such
period, he shall have been sentenced by final judgment to suffer an
imprisonment of not less than one year.

"(b) Any person who has been adjudged by final judgment by competent

Philippines.ℒαwρhi ৷
court of having violated his allegiance to the Republic of the

"(c) Insane or feeble-minded persons.

"(d) Persons who cannot prepare their ballots themselves."

52 "SEC. 10. ...

"The following persons shall not be qualified to vote:

"a. Any person who has been sentenced by final judgment to suffer one year
or more of imprisonment, within two years after service of his sentence;

"b. Any person who has violated his allegiance to the Republic of the
Philippines; and

"c. Insane or feeble-minded persons."

53 20 C.J., 179-181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also,
Garchitorena v. Crescini, 39 Phil. 258.

54 Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323,
Glenn v. Gnau, 64 S.W. 2d. 168. Emphasis ours.

55 L-33325 and L-34043, December 29, 1971.

56 Hopkins v. City of Duluth, 83 N.W. 536, 538. Emphasis ours.

57 Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Emphasis ours.

58 Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Emphasis
ours.

59 Art. X, section 1 of the 1935 Constitution.

60 Ten (10) years.

61 Art. X, section 2 of the 1935 Constitution.

62 Ibid.

63 Art. X, section 3 of the 1935 Constitution.

64 "SEC. 5. Organization of the Commission on Elections. — The Commission

shall adopt its own rules of procedure. Two members of the Commission shall
constitute a quorum. The concurrence of two members shall be necessary for
the pronouncement or issuance of a decision, order or ruling.

"The Commission shall have an executive and such other subordinate officers
and employees as may be necessary for the efficient performance of its
functions and duties, all of whom shall be appointed by the Commission in
accordance with the Civil Service Law and rules.

"The executive officer of the Commission, under the direction of the

Chairman, shall, have charge of the administrative business of the
Commission, shall have the power to administer oaths in connection with all
matters involving the business of the Commission, and shall perform such,
other duties as may he required of him by the Commission.

"SEC. 6. Power of the Commission to Investigate and to Hear Controversy

and Issue Subpoena. — The Commission or any of the members thereof
shall, in compliance with the requirement of due process, have the power to
summon the parties to a controversy pending before it,
issue subpoenae and subpoenae duces tecum and otherwise take testimony
in any investigation or hearing pending before it, and delegate such power to
any officer of the Commission who shall be a member of the Philippine Bar. In
case of failure of a witness to attend, the Commission, upon proof of service
of the subpoenae to said witness, may issue a warrant to arrest the witness
land bring him before the Commission or officer before whom his attendance
is required. The Commission shall have the power to punish contempts
provided for in the Rules of Court under the controversy submitted to the
Commission shall after complaince with the requirements of due process be
heard and decided by it within thirty days after submission of the case.

"The Commission may, when it so requires, deputized any member of any

national or local law enforcement agency and/or instrumentality of the
government to execute under its direct and immediate supervision any of its
final decisions, orders, instructions or rulings.

"Any decision, order or ruling of the Commission on election controversies

may be reviewed by the Supreme Court by writ of a certiorari in accordance
with the Rules of Court or such applicable laws as may enacted.
"Any violation of any final executory decision, order or ruling of the
Commission shall constitute contempt thereof."

65 64 S.W. 2d. 168.

66 L-35538, Roses, et al. v. Secretary of National Defense, et al.; L-35539,

Diokno v. Hon. Enrile, et al.; L-35540, Soliven, et al. v. Secretary of National
Defense, et al.; L-35546, Aquino, Jr., et al. v. Hon. Enrile, et al.; L-35547,
Garcia II v. Hon. Enrile, et al.; L-35567 Doronila, et al. v. Secretary of National
Defense, et al.; L-35573, Randon v. Hon. Enrile, et al.

67 "PRESIDENTIAL DECREE NO. 86-A

"STRENGTHENING AND DEFINING THE ROLE OF

BARANGAYS (CITIZENS ASSEMBLIES).

"WHEREAS, on the basis of preliminary and initial reports from the field as
gathered from barangays (citizens assemblies) have so far been established,
the people would like to decide themselves questions or issues, both local
and national, affecting their day to day lives and their future.

"WHEREAS, the barangays (citizens assemblies) would like themselves to be

the vehicle for expressing the views of the people on important national
issues;

"WHEREAS, such barangays (citizens assemblies) desire that they be given

legal status and due recognition as constituting the genuine, legitimate and
valid expression of the popular will; and

"WHEREAS, the people would like the citizens assemblies to conduct

immediately a referendum on certain specified questions such as the
ratification of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in November
1973 pursuant to the 1935 Constitution.

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

by virtue of the powers vested in me by the Constitution as Commander-in-
Chief of all Armed Forces of the Philippines, do hereby declare as part of the
law of the land the following.

"1. The present barangays (citizens assemblies) are created under

Presidential Decree No. 86 dated December 31, 1972, shall constitute the
base for citizen participation in governmental affairs and their collective
views shall be considered in the formulation of national policies or programs
and, wherever practicable, shall be translated into concrete and specific
decision;

"2. Such barangays (citizens assemblies) shall consider vital national issues
now confronting the country, like the holding of the plebiscite on the new
Constitution, the continuation of martial rule, the convening of Congress on
January 22, 1973, and the holding of elections in November 1973, and others
in the future, which shall serve as guide or basis for action or decision by the
national government;

"3. The barangays (citizens assemblies) shall conduct between January 10

and 15, 1973, a referendum on important national issues, including those
specified in paragraph 2 hereof, and submit the results thereof to the
Department of Local Governments and Community Development
immediately thereafter, pursuant to the express will of the people as
reflected in the reports gathered from the many thousands of barangays
(citizens assemblies) throughout the country.

"4. This Decree shall take effect immediately.

"Done in the City of Manila, this 5th day of January, in the year of Our Lord,
nineteen hundred and seventy-three." (Emphasis ours.).

68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Emphasis ours.

69 Art. VII, section 2, 1935 Constitution.

70 Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex
rel. Sathre v. Bryne, 258 N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d.
869; Smith v. Bangham, 76 p 2d. 1022. McKim v. Brast, 117 S.E. 875; Head v.
Wood, 107 So. 854; State ex rel. Watson v. Pigg, 46 N.E. 2d. 232.

71 See cases cited in the preceding footnote. See, also, Tiegs v. Patterson,
318 P. 2d. 588; State ex rel. Brown v. St. Joseph Circuit Court, 95 N.E. 2d.
632; Williamson v. State Election Board, 431 P. 2d. 352, Baker v. Conway, 108
So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v. Walcott, 83 A.
2d. 762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board of Elections of
Stark County, 88 N.E. 2d. 245; Walker v. Hughes, 36 A. 2d. 47; Reese v.
Dempsey, 152 P. 2d. 157; Dodd v. Gower, 62 S.W. 2d. 1; Galloway v.
Bradburn, 82 S.W. 1013; Hagan v. Henry, 76 S.W. 2d. 994.

72 106 Minn 392, 119 N.W. 408, 409.

73 63 N.J. Law, 289, cited in In re McConaughy, supra.

74 78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra.

75 See cases listed on pages 105-106, footnotes 56, 57 and 58.

76 On December 19, 1972.

77 24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. 2d.
223, 228; Harris v. Shanahan, 387 P. 2d. 771, 784, 785.

78 369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, 264
U.S. 543, 547, 548, 68 L. ed. 841, 843, 44 S. Ct. 405.

79 Art. VII, section 10, paragraph (1).

80 101 Va. 529, 44 S.E. 754.

81 Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. 669; 62
C.J.S. 749-750; Guevara v. Inocentes, L-25577, March 15, 1966.

82 Which, in some respects, is regarded as an organ of the Administration,

and the news items published therein are indisputably censored by the
Department of Public Information.

83 Daily Express, November 29, 1972, p. 4. Emphasis ours.

84 231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.

85 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.

86 Justice Barredo's opinion in the plebiscite cases.

87 Joint Opinion of Justices Makalintal and Castro, p. 153.

88 Justice Barredo's language.

89 At p. 153, joint opinion of Justices Makalintal and Castro.

90 Joint Opinion of Justices Makalintal and Castro, p. 153.

91 At p. 8, Idem.

ANNEX A

PERTINENT PORTIONS OF THE MINNESSOTA SUPREME COURT DECISION ON

THE CASE

IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the proposal,
submission, or ratification of constitutional amendments. It has
been judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v.
Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744,
881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A.
422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green
v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny,
156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed.
423); whether a proposed amendment is a single amendment, within the
constitutional requirement that every amendment must be separately
submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago,
etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W.
785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook,
127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac. 167,
102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. 450; State v.
Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to
enter the resolution of submission upon the legislative journals invalidates
the amendment (Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609;
Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla.
154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v.
Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description
of the amendment and the form of the ballot are sufficient (Russell v. Croy,
164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.]
149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether
the method of submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W.
765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of the
amendment or of a notice relative to it is sufficient (Com. v. Griest, 196 Pa.
396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849);
whether the submission may be well by resolution as by a legislative act
approved by the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.
568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo.
410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732;
State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the
amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).

In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It
is contended that the determination of the question whether an amendment
to the Constitution has been carried involves the exercise of political, and not
judicial, power. If this be so, it follows that the promulgation of any purported
amendment by the executive or any executive department is final, and that
the action cannot be questioned by the judiciary; but, with reference to the
conditions precedent to submitting a proposed amendment to a vote of the
people, it has been repeatedly held, by courts of the highest respectability,
that it is within the power of the judiciary to inquire into the question, even
in a collateral proceeding. ... It is to be noted that under section 1 of article
20 of the Constitution of the state no amendment can become a part of the
Constitution until ratified by a vote of the people. One prerequisite is equally
as essential as the other. The amendment must first receive the requisite
majority in the Legislature, and afterwards be adopted by the requisite
vote. ... It is the fact of a majority vote which makes the amendment a part
of the Constitution."

"In considering the cases it is necessary to note whether in the particular

case the court was called upon to determine between rival governments, or
whether the Legislature, or some board or official, had legally performed the
duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo.
303, 29 Am. Dec. 636, it was held that the General Assembly, under the
power granted by the Constitution, could change the Constitution only in the
manner prescribed by it, and that it was the duty of the court to determine
whether all prerequisites had been complied with. In Collier v. Frierson, 24
Ala. 100, it was held that a Constitution can be changes only by the
people in convention or in a mode described by the Constitution itself, and
that if the latter mode is adopted every requisite of the Constitution must be
observed. 'It has been said," says the court, "that certain acts are to be
done, certain requisitions are to be observed, before a change can be
effected; but to what purpose are these acts required, or these requisitions
enjoined, if the Legislature or any other department of the government
can dispense with them. To do so would be to violate the instrument which
they are sworn to support; and every principle of public law and sound
constitutional policy requires the court to pronounce against every
amendment which is shown not to have been made in accordance with the
rules prescribed by the fundamental law.'

"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may
form an original Constitution, or abrogate an old one and form a new one, at
any time, without any political restriction, except the Constitution of the
United States, but if they undertake to add an amendment, by the authority
of legislation to a Constitution already in existence, they can do it only by the
method pointed out by the Constitution to which the amendment is added.
The power to amend a Constitution by legislative action does not confer the
power to break it, any more than it confers the power to legislate on any
other subject contrary to its prohibitions.' So, in State v. Timme, 54 Wis. 318,
11 N.W. 785, it was held that no amendments can be made to the
Constitution of the state without a compliance with the provisions thereof,
both in the passage of such amendment by the Legislature and the manner
of submitting it to the people. The courts have not all agreed as to the
strictness of compliance which should be required.

"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined
judicially whether an amendment to the Constitution had been legally
adopted. After approving the statement quoted from Collier v.
Frierson, supra, that 'we entertain no doubt that, to change the Constitution
in an other mode than by a convention, every requisite which is demanded
by the instrument itself must be observed, and the omission of any one is
fatal to the amendment,' the court held that, 'as substance of right is
grander and more potent than methods of form,' there had been substantial
compliance with the constitutional requirement that a proposed amendment
to the Constitution must be entered at length on the legislative journal. It
appears that the joint resolution making submission simply provided that a
proposition should be submitted to the electors at the general election of
1880. It did not declare that the machinery of the general election law should
control, or that any particular officers or board would receive, count, or
canvass the votes cast. But the existing election machinery was adequate,
and the votes were received, counted, and canvassed, and the result
declared as fully as though it had been in terms so ordered. These methods
had been followed in the adoption of previous amendments, and was held
that, conceding the irregularity of the proceedings the Legislature and the
doubtful scope of the provisions for the election, yet in view of the very
uncertainty of such provision the past legislative history of similar
propositions, the universal prior acquiescence in the same forms of
procedure and the popular and unchallenged acceptance of the legal
pendency before the people of the question of the amendment for decision,
and in view of the duty cast upon the court taking judicial knowledge of
anything affecting the existence and validity of any law or portion of the
Constitution, it must be adjudged that the proposed amendment became
part of the Constitution. The effect was to hold that a provision of the
Constitution requiring the proposed amendment to be entered in full on the
journals was directory, and not mandatory. This liberal view was approved in
State v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People v.
Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been
universally accepted.

"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in
commenting upon the Kansas case said: 'The reasoning by which the learned
court reached the conclusion it did is not based on any sound legal
principles, but contrary to them. Neither the argument nor the conclusion
can command our assent or approval. The argument is illogical, and based
on premises which are without any sound foundation, and rests merely on
assumption.' See, also, the well-considered case of Kadderly v. Portland, 44
Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the jurisdiction of
the court to determine whether, in submitting a proposed amendment to the
people, the Legislature legally observed the constitutional provisions as to
the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424,
25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer,
restrained the Secretary of State from taking steps to submit to the people a
proposed amendment to the Constitution agreed to by the Legislature on the
ground that the Legislature had not acted in conformity with the Constitution
and that the proposed amendment was of such a character that it could not
properly become a part of the Constitution. The Supreme Court of Colorado,
in People v. Sours, supra, refused to exercise this authority.

"The entire question received elaborate consideration in Koehler v. Hill, 60

Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly
had been adopted by the people, had not, before its submission, been
entered in full upon the legislative journals, as required by the Constitution,
and it was held that this was a material variance in both form and substance
from the constitutional requirements, and that the amendment did not,
therefore, become a part of the Constitution. As to the claim that the
question was political, and not judicial, it was said that, while it is not
competent for courts to inquire into the validity of the Constitution and the
form of government under which they themselves exist, and from which they
derive their powers, yet, where the existing Constitution prescribes a
method for its own amendment, an amendment thereto, to be valid, must be
adopted in strict conformity to that method; and it is the duty of the courts in
a proper case, when an amendment does not relate to their own power or
functions, to inquire whether, in the adoption of the amendment, the
provisions of the existing Constitution have been observed, and, if not, to
declare the amendment invalid and of no force. This case was followed
in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a proposed
amendment to the Constitution had been legally adopted was treated as
a judicial question. By the Constitution a proposed amendment was required
to be approved by Legislatures before its submission to the people. In this
instance a bill was passed which contained 17 amendments. The next
Legislature rejected 9 and adopted 8 of the amendments, and submitted
them to the people. The majority of the people voted for their adoption; but
it was contended that the Constitution contemplated and required that the
same bill and the same amendments, without change, should approved by
both Legislatures, and that it did not follow because the second Legislature
adopted separately 8 out of 17 amendments adopted by the first Legislature,
it would have adopted the 17, or any of them, if they had been voted upon
the second in the form adopted by the first body. The substance of the
contention was that there had not been a concurrence of
the two Legislatures on the same amendments, according to the letter and
spirit of the Constitution. The court held that the power of the Legislature in
submitting amendments could not be distinguished from the powers of
convention, and that, as the people had spoken and ratified the
amendments, they became a part of the Constitution.

"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior
to 1876 a proposed amendment to Constitution could not be submitted to
the people at any other than a general election; but, as the amendment
under consideration had been submitted after the Constitution been
changed, it had been legally submitted and adopted.

"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an
amendment to the Constitution had been legally submitted and adopted by
the people was held to be judicial, and not political, in its nature. The
amendment under consideration changed the Constitution by providing for
an elective, instead of an appointive, judiciary. It was contented that the
amendments had been improperly submitted and adopted by a majority of
the qualified voters voting at election, as required by the Constitution. The
law did direct how the result of the election should be determined. The
Legislature by joint resolution recited that the election had been duly held
throughout the state, and, as it appeared from the returns made to the
Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes
against, the amendment, it resolved 'that said amendment be, and hereby
is, inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the
manner prescribed by the Constitution, and it did not receive a majority of all
the qualified voters voting at the election. It was argued that the rules
prescribed by the Constitution "are all for the guidance of the Legislature,
and from the very nature of the thing the Legislature must be
the exclusive judge of all questions to be measured or determined by these
rules. Whether the question be political, and certainly a legislative one, or
judicial, to be determined by the courts, this section of rules, not only of
procedure, but of final judgment as well, confides to the separate magistracy
of the legislative department full power to hear, consider, and adjudge that
question. The Legislature puts the question to the qualified electors.
The qualified electors answer back to the Legislature. "If it shall appear" to
the Legislature that its question has been answered in the affirmative, the
amendment is inserted and made a part of the Constitution. The Governor
and the courts have no authority to speak at any stage of the proceedings
between the sovereign and the Legislature, and when the matter is thus
concluded it is closed, and the judiciary is as powerless to interfere as the
executive.' But it was held that the question whether the proposition
submitted to the voters constituted one, or more than one,
amendment, whether the submission was according to the requirements of
the Constitution, and whether the proposition was in fact adopted, were all
judicial, and not political, questions. 'We do not,' said Chief Justice Whitfield,
'seek a jurisdiction not imposed upon us by the Constitution. We could not, if
we would, escape the exercise of that jurisdiction which the Constitution has
imposed upon us. In the particular instance in which we are now acting, our
duty to know what the Constitution of the state is, and in accordance with
our oaths to support and maintain it in its integrity, imposed on us a most
difficult and embarrassing duty, one which we have not sought, but one
which, like all others, must be discharged."

"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held
that it was the duty of the judicial department of the government to
determine whether the legislative department or its officers had observed
the constitutional injunctions in attempting to amend the Constitution, and
to annul their acts if they had not done so. The case is an interesting and
well-considered one. The Constitution provided the manner in which
proposed amendments should be submitted to the people, but did not
provide a method for canvassing the votes. The Legislature having agreed to
certain proposed amendments, passed an act for submitting the same to the
people. This statute provided for the transmission to the Secretary of State of
certificate showing the result of the voting throughout the state, and made it
the duty of the Governor at the designated time summon four or more
Senators, who, with the Governor, should constitute a board of state
canvassers to canvass and estimate the votes for and against each
amendment. This board was to determine and declare which of the proposed
amendments had been adopted and to deliver a statement of the results to
the Secretary of State, and "any proposed amendment, which by said
certificate and determination of the board of canvassers shall appear to have
received in its favor the majority of all the votes cast in the state for and
against said proposed amendment, shall from the time of filing such
certificate be and become an amendment to and a part of the Constitution of
the state; and it shall be the duty of the Governor of the state forthwith, after
such a determination, to issue a proclamation declaring which of the said
proposed amendments have been adopted by the people." This board was
required to file a statement of the result of the election, and the Governor to
issue his proclamation declaring that the amendment had been adopted and
become a part of the Constitution. At the instance of a taxpayer the Supreme
Court allowed a writ of certiorari to remove into the court for review the
statement of the results of the election made by the canvassing board, in
order that it might be judicially determined whether on the facts shown in
that statement the board had legally determined that the proposed
amendment had been adopted. The Supreme Court decided that the
concurrence of the board of state canvassers and the executive department
of the government in their respective official functions placed the subject-
matter beyond the cognizance of the judicial department of the state. The
Court of Appeals, after a full review of the authorities, reversed this decision,
and held that the questions were of a judicial nature, and properly
determinable by the court on their merits. Mr. Justice Dixon, after stating the
facts, said: 'It thus becomes manifest that there was present in the Supreme
Court, and is now pending in this court, every element tending to maintain
jurisdiction over the subject-matter, unless it be true, as insisted, that the
judicial department of the government has not the right to consider whether
the legislative department and its agencies have observed constitutional
injunctions in attempting to amend the Constitution, and to annul their acts
in case that they have not done so. That such a proposition is not true seems
to be indicated by the whole history of jurisprudence in this country.' The
court, after considering the case on the merits, held that the proper
conclusion had been drawn therefrom, and that the amendment in question
was legally submitted and adopted.

"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the
identical question which we have under consideration. In reference to the
contention that the Constitution intended to delegate to the Speaker of the
House of Representatives the power to determine whether an amendment
had been adopted, and that the question was political, and not judicial, the
court observed: "The argument has often been made in similar cases to the
courts, and it is found in many dissenting opinions; but, with probably
a few exceptions, it is not found in any prevailing opinion."

"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that
the constitutional requirement of publication of a proposed constitutional
provision for three months prior to the election at which it is to be submitted
to the people is mandatory and that noncompliance therewith renders the
adoption of an amendment of no effect."

ANNEX B

MALACAÑANG
MANILA

BY THE PRESIDENT OF THE PHILIPPINES

PRESIDENTIAL DECREE NO. 86-B

Defining Further the Role of Barangays (Citizens Assemblies)

WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated

December 31, 1972, the Barangays (Citizens Assemblies) have petitioned
the Office of the President to submit to them for resolution important
national issues;

WHEREAS, one of the questions persistently mention refers to the ratification

of the Constitution proposed by the 1971 Constitutional Convention;

WHEREAS, on the basis of the said petitions, it is evident that the people
believe that the submission of the proposed Constitution to the Citizens
Assemblies or Barangays should taken as a plebiscite in itself in view of the
fact that freedom of debate has always been limited to the leadership in
political, economic and social fields, and that it is now necessary to bring this
down to the level of the people themselves through the Barangays or
Citizens Assemblies;

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

virtue of the powers in me vested by the Constitution, do hereby order that
important national issues shall from time to time be referred to the
Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 an that the initial
referendum shall include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention.

The Secretary of the Department of Local Government and Community

Development shall insure the implementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord,
nineteen hundred and seventy-three.

(Sgd.) FERDINAND E. MARCOS

By the President:

(Sgd.) ALEJANDRO MELCHOR

Executive Secretary

[ G.R. No. 225973. November 08, 2016 ]

SATURNINO C. OCAMPO, TRINIDAD H. REPUNO, BIENVENIDO

LUMBERA, BONIFACIO P. ILAGAN, NERI JAVIER COLMENARES, MARIA
CAROLINA P. ARAULLO, M.D., SAMAHAN NG EXDETAINEES LABAN SA
DETENSYON AT ARESTO (SELDA), REPRESENTED BY DIONITO
CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL ROSARIO,
FELIX C. DALISAY, AND DANILO M. DELAFUENTE,* PETITIONERS, VS.
REAR ADMIRAL ERNESTO C. ENRIQUEZ (IN HIS CAPACITY AS THE
DEPUTY CHIEF OF STAFF FOR RESERVIST AND RETIREE AFFAIRS,
ARMED FORCES OF THE PHILIPPINES), THE GRAVE SERVICES UNIT
(PHILIPPINE ARMY), AND GENERAL RICARDO R. VISAYA (IN HIS
CAPACITY AS THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES), DEFENSE SECRETARY DELFIN LORENZANA, AND HEIRS
OF FERDINAND E. MARCOS, REPRESENTED BY HIS SURVIVING
SPOUSE IMELDA ROMUALDEZ MARCOS, RESPONDENTS.

RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR., RENE A.C.
SAGUISAG III, INTERVENORS.

[G.R. No. 225984]

REP. EDCEL C. LAGMAN, IN HIS PERSONAL AND OFFICIAL CAPACITIES

AND AS A MEMBER OF CONGRESS AND AS THE HONORARY
CHAIRPERSON OF THE FAMILIES OF VICTIMS OF INVOLUNTARY
DISAPPEARANCE (FIND); FAMILIES OF VICTIMS OF INVOLUNTARY
DISAPPEARANCE (FIND), REPRESENTED BY ITS COCHAIRPERSON,
NILDA L. SEVILLA; REP. TEDDY BRAWNER BAGUILAT, JR.; REP.
TOMASITO S. VILLARIN; REP. EDGAR R. ERICE; AND REP. EMMANUEL
A. BILLONES, PETITIONERS, VS. EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA; DEFENSE SECRETARY DELFIN N. LORENZANA; AFP CHIEF
OF STAFF LT. GEN. RICARDO R. VISAYA; AFP DEPUTY CHIEF OF STAFF
REAR ADMIRAL ERNESTO C. ENRIQUEZ; AND HEIRS OF FERDINAND E.
MARCOS, REPRESENTED BY HIS SURVIVING SPOUSE IMELDA
ROMUALDEZ MARCOS, RESPONDENTS.

[G.R. No. 226097]

LORETTA ANN PARGAS-ROSALES, HILDA B. NARCISO, AIDA F.

SANTOSMARANAN, JO-ANN Q. MAGLIPON, ZENAIDA S. MIQUE, FE B.
MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D. AGUILAR, MINERVA
G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUIE G. CRISMO,
FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE, AND ABDULMARI
DE LEON IMAO, JR., PETITIONERS, VS. EXECUTIVE SECRETARY
SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA,
AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ,
AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, AND PHILIPPINE
VETERANS AFFAIRS OFFICE (PVAO) ADMINISTRATOR LT. GEN.
ERNESTO G. CAROLINA (RET.), RESPONDENTS.

[G.R. No. 226116]

HEHERSON T. ALVAREZ, JOEL C. LAMANGAN, FRANCIS X.

MANGLAPUS, EDILBERTO C. DE JESUS, BELINDA O. CUNANAN,
CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES, SR., ARNOLD
MARIE NOEL, CARLOS MANUEL, EDMUND S. TAYAO, DANILO P.
OLIVARES, NOEL F. TRINIDAD, JESUS DELA FUENTE, REBECCA M.
QUIJANO, FR. BENIGNO BELTRAN, SVD, ROBERTO S. VERZOLA,
AUGUSTO A. LEGASTO, JR., AND JULIA KRISTINA P. LEGASTO,
PETITIONERS, VS. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA,
DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT.
GEN. RICARDO R. VISAYA, AFP DEPUTY CHIEF OF STAFF REAR
ADMIRAL ERNESTO C. ENRIQUEZ, AND PHILIPPINE VETERANS
AFFAIRS OFFICE (PVAO) OF THE DND, RESPONDENTS.

[G.R. No. 226117

ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN BUENAAGUA, JOANNE

ROSE SACE LIM, JUAN ANTONIO RAROGAL MAGALANG, PETITIONERS,
VS. SECRETARY OF NATIONAL DEFENSE DELFIN N. LORENZANA, AFP
CHIEF OF STAFF RICARDO R. VISAYA, ADMINISTRATOR OF THE
PHILIPPINE VETERANS AFFAIRS OFFICE ERNESTO G. CAROLINA,
RESPONDENTS.

[G.R. No. 226120]

ALGAMAR A. LATIPH, PETITIONER, VS. SECRETARY DELFIN N.

LORENZANA, SUED IN HIS CAPACITY AS SECRETARY OF NATIONAL
DEFENSE, LT. GEN. RICARDO R. VISAYA, IN HIS CAPACITY AS CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND LT. GEN.
ERNESTO G. CAROLINA (RET.), IN HIS CAPACITY AS ADMINISTRATOR,
PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO), RESPONDENTS.

[G.R. No. 226294]

LEILA M. DE LIMA, IN HER CAPACITY AS SENATOR OF THE REPUBLIC

AND AS TAXPAYER, PETITIONER, VS. HON. SALVADOR C. MEDIALDEA,
DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT.
GEN. RICARDO R. VISAYA, UNDERSECRETARY ERNESTO G. CAROLINA,
IN HIS CAPACITY AS PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO)
ADMINISTRATOR AND B/GEN. RESTITUTO L. AGUILAR, IN HIS
CAPACITY AS SHRINE CURATOR AND CHIEF VETERANS MEMORIAL
AND HISTORICAL DIVISION AND HEIRS OF FERDINAND EDRALIN
MARCOS, RESPONDENTS.

DECISION

PERALTA, J.:

In law, as much as in life, there is need to find closure. Issues that

have lingered and festered for so long and which unnecessarily
divide the people and slow the path to the future have to be
interred. To move on is not to forget the past. It is to focus on the
present and the future, leaving behind what is better left for history
to ultimately decide. The Court finds guidance from the Constitution
and the applicable laws, and in the absence of clear prohibition
against the exercise of discretion entrusted to the political branches
of the Government, the Court must not overextend its readings of
what may only be seen as providing tenuous connection to the issue
before it.

Facts
During the campaign period for the 2016 Presidential Election, then
candidate Rodrigo R. Duterte (Duterte) publicly announced that he would
allow the burial of former President Ferdinand E. Marcos (Marcos) at
the Libingan Ng Mga Bayani (LNMB). He won the May 9, 2016 election,
garnering 16,601,997 votes. At noon of June 30, 2016, he formally assumed
his office at the Rizal Hall in the Malacańan Palace.

On August 7, 2016, public respondent Secretary of National Defense Delfin N.

Lorenzana issued a Memorandum to the public respondent Chief of Staff of
the Armed Forces of the Philippines (AFP), General Ricardo R. Visaya,
regarding the interment of Marcos at the LNMB, to wit:

Subject: Interment of the late Former President Ferdinand Marcos at

LNMB

Reference: Verbal Order of President Rodrigo Duterte on July 11, 2016.

In compliance to (sic) the verbal order of the President to implement his

election campaign promise to have the remains of the late former President
Ferdinand E. Marcos be interred at the Libingan ng mga Bayani, kindly
undertake all the necessary planning and preparations to facilitate the
coordination of all agencies concerned specially the provisions for ceremonial
and security requirements. Coordinate closely with the Marcos family
regarding the date of interment and the transport of the late former
President's remains from Ilocos Norte to the LNMB.

The overall OPR for this activity will [be] the PVAO since the LNMB is under
its supervision and administration. PVAO shall designate the focal person for
this activity who shall be the overall overseer of the event.

Submit your Implementing Plan to my office as soon as possible.1

On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez issued

the following directives to the Philippine Army (PA) Commanding General:

SUBJECT: Funeral Honors and Service

TO: Commanding General, Philippine Army

Headquarters, Philippine Army
Fort Bonifacio, Taguig City
Attn: Assistant Chief of Staff for RRA, G9

1. Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP dated 14 July 1992,
provide services, honors and other courtesies for the late Former President
Ferdinand E. Marcos as indicated:
[x] Vigil - Provide vigil

[x] Bugler/Drummer

[x] Firing Party

[x] Military Host/Pallbearers

[x] Escort and Transportation

[x] Arrival/Departure Honors

2. His remains lie in state at Ilocos Norte

3. Interment will take place at the Libingan ng mga Bayani, Ft.

Bonifacio, Taguig City. Date: TBAL.

4. Provide all necessary military honors accorded for a President

5. POC: Administrator, PVAO BY COMMAND OF GENERAL VISAYA2

Dissatisfied with the foregoing issuance, the following were filed by

petitioners:

1. Petition for Certiorari and Prohibition3 filed by Saturnino Ocampo and

several others,4 in their capacities as human rights advocates or human
rights violations victims as defined under Section 3 (c) of Republic Act (R.A.)
No. 10368 (Human Rights Victims Reparation and Recognition Act of 2013).

2. Petition for Certiorari-in-Intervention5 filed by Rene A.V. Saguisag, Sr. and

his son,6 as members of the Bar and human rights lawyers, and his
grandchild.7

3. Petition for Prohibition8 filed by Representative Edcel C. Lagman, in his

personal capacity, as member of the House of Representatives and as
Honorary Chairperson of Families of Victims of Involuntary Disappearance
(FIND), a duly-registered corporation and organization of victims and families
of enforced disappearance, mostly during the martial law regime of the
former President Marcos, and several others,9 in their official capacities as
duly-elected Congressmen of the House of Representatives of the Philippines.

4. Petition for Prohibition10 filed by Loretta Ann Pargas-Rosales, former

Chairperson of the Commission on Human Rights, and several
others,11 suing as victims of State-sanctioned human rights violations during
the martial law regime of Marcos.
5. Petition for Mandamus and Prohibition12 filed by Heherson T. Alvarez,
former Senator of the Republic of the Philippines, who fought to oust the
dictatorship of Marcos, and several others,13 as concerned Filipino citizens
and taxpayers.

6. Petition for Certiorari and Prohibition14 filed by Zaira Patricia B. Baniaga

and several others,15 as concerned Filipino citizens and taxpayers.

7. Petition for Certiorari and Prohibition16 filed by Algamar A. Latiph, former

Chairperson of the Regional Human Rights Commission, Autonomous Region
in Muslim Mindanao, by himself and on behalf of the Moro17 who are victims
of human rights during the martial law regime of Marcos.

8. Petition for Certiorari and Prohibition18 filed by Leila M. De Lima as

member of the Senate of the Republic of the Philippines, public official and
concerned citizen.

Issues

Procedural

1. Whether President Duterte's determination to have the remains of Marcos

interred at the LNMB poses a justiciable controversy.

2. Whether petitioners have locus standi to file the instant petitions.

3. Whether petitioners violated the doctrines of exhaustion of administrative

remedies and hierarchy of courts.

Substantive

1. Whether the respondents Secretary of National Defense and AFP Rear

Admiral committed grave abuse of discretion, amounting to lack or excess of
jurisdiction, when they issued the assailed memorandum and directive in
compliance with the verbal order of President Duterte to implement his
election campaign promise to have the remains of Marcos interred at the
LNMB.

2. Whether the Issuance and implementation of the assailed memorandum

and directive violate the Constitution, domestic and international laws,
particularly:

(a) Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Section 1 of Article III,
Section 17 of Article VII, Section 1 of Article XI, Section 3(2) of Article XIV,
and Section 26 of Article XVIII of the 1987 Constitution;
(b) R.A. No. 289;

(c) R.A. No. 10368;

(d) AFP Regulation G 161-375 dated September 11, 2000;

(e) The International Covenant on Civil and Political Rights;

(f) The "Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law" of the United
Nations (U.N.) General Assembly; and

(g) The "Updated Set of Principles for Protection and Promotion of Human
Rights through Action to Combat Impunity" of the U.N. Economic and Social
Council;

3. Whether historical facts, laws enacted to recover ill-gotten wealth from the
Marcoses and their cronies, and the pronouncements of the Court on the
Marcos regime have nullified his entitlement as a soldier and former
President to interment at the LNMB.

4. Whether the Marcos family is deemed to have waived the burial of the
remains of former President Marcos at the LNMB after they entered into an
agreement with the Government of the Republic of the Philippines as to the
conditions and procedures by which his remains shall be brought back to and
interred in the Philippines.

Opinion

The petitions must be dismissed.

Procedural Grounds

Justiciable controversy

It is well settled that no question involving the constitutionality or validity of

a law or governmental act may be heard and decided by the Court unless the
following requisites for judicial inquiry are present: (a) there must be an
actual case or controversy calling for the exercise of judicial power; (b) the
person challenging the act must have the standing to question the validity of
the subject act or issuance; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of constitutionality must
be the very lis mota of the case.19 In this case, the absence of the first two
requisites, which are the most essential, renders the discussion of the last
two superfluous.20
An "actual case or controversy" is one which involves a conflict of legal
rights, an assertion of opposite legal claims, susceptible of judicial resolution
as distinguished from a hypothetical or abstract difference or
dispute.21 There must be a contrariety of legal rights that can be interpreted
and enforced on the basis of existing law and jurisprudence.22 Related to the
requisite of an actual case or controversy is the requisite of "ripeness," which
means that something had then been accomplished or performed by either
branch before a court may come into the picture, and the petitioner must
allege the existence of an immediate or threatened injury to itself as a result
of the challenged action.23 Moreover, the limitation on the power of judicial
review to actual cases and controversies carries the assurance that the
courts will not intrude into areas committed to the other branches of
government.24 Those areas pertain to 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.25 As they are concerned
with questions of policy and issues dependent upon the wisdom, not legality
of a particular measure,26 political questions used to be beyond the ambit of
judicial review. However, the scope of the political question doctrine has
been limited by Section 1 of Article VIII of the 1987 Constitution when it
vested in the judiciary the power 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.

The Court agrees with the OSG that President Duterte's decision to have the
remains of Marcos interred at the LNMB involves a political question that is
not a justiciable controversy. In the exercise of his powers under the
Constitution and the Executive Order (E.O.) No. 292 (otherwise known as the
Administrative Code of 1987) to allow the interment of Marcos at the LNMB,
which is a land of the public domain devoted for national military cemetery
and military shrine purposes, President Duterte decided a question of policy
based on his wisdom that it shall promote national healing and forgiveness.
There being no taint of grave abuse in the exercise of such discretion, as
discussed below, President Duterte's decision on that political question is
outside the ambit of judicial review.

Locus standi

Defined as a right of appearance in a court of justice on a given

question,27 locus standi requires that 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.28 Unless a person has
sustained or is in imminent danger of sustaining an injury as a result of an
act complained of, such proper party has no standing.29 Petitioners, who
filed their respective petitions for certiorari, prohibition and mandamus, in
their capacities as citizens, human rights violations victims, legislators,
members of the Bar and taxpayers, have no legal standing to file such
petitions because they failed to show that they have suffered or will suffer
direct and personal injury as a result of the interment of Marcos at the LNMB.

Taxpayers have been allowed to sue where there is a claim that public funds
are illegally disbursed or that public money is being deflected to any
improper purpose, or that public funds are wasted through the enforcement
of an invalid or unconstitutional law.30 In this case, what is essentially being
assailed is the wisdom behind the decision of the President to proceed with
the interment of Marcos at the LNMB. As taxpayers, petitioners merely claim
illegal disbursement of public funds, without showing that Marcos is
disqualified to be interred at the LNMB by either express or implied provision
of the Constitution, the laws or jurisprudence.

Petitioners Saguisag, et al.,31 as members of the Bar, are required to allege

any direct or potential injury which the Integrated Bar of the Philippines, as
an institution, or its members may suffer as a consequence of the act
complained of.32 Suffice it to state that the averments in their petition-in-
intervention failed to disclose such injury, and that their interest in this case
is too general and shared by other groups, such that their duty to uphold the
rule of law, without more, is inadequate to clothe them with requisite legal
standing.33

As concerned citizens, petitioners are also required to substantiate that the

issues raised are of transcendental importance, of overreaching significance
to society, or of paramount public interest.34 In cases involving such issues,
the imminence and clarity of the threat to fundamental constitutional rights
outweigh the necessity for prudence.35 In Marcos v. Manglapus,36 the
majority opinion observed that the subject controversy was of grave national
importance, and that the Court's decision would have a profound effect on
the political, economic, and other aspects of national life.
The ponencia explained that the case was in a class by itself, unique and
could not create precedent because it involved 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 (from
1986), sought to return to the Philippines to die.

At this point in time, the interment of Marcos at a cemetery originally

established as a national military cemetery and declared a national shrine
would have no profound effect on the political, economic, and other aspects
of our national life considering that more than twenty-seven (27) years since
his death and thirty (30) years after his ouster have already passed.
Significantly, petitioners failed to demonstrate a clear and imminent threat to
their fundamental constitutional rights.

As human rights violations victims during the Martial Law regime, some of
petitioners decry re-traumatization, historical revisionism, and disregard of
their state recognition as heroes. Petitioners' argument is founded on the
wrong premise that the LNMB is the National Pantheon intended by law to
perpetuate the memory of all Presidents, national heroes and patriots. The
history of the LNMB, as will be discussed further, reveals its nature and
purpose as a national military cemetery and national shrine, under the
administration of the AFP.

Apart from being concerned citizens and taxpayers, petitioners Senator De

Lima, and Congressman Lagman, et al.37 come before the Court as
legislators suing to defend the Constitution and to protect appropriated
public funds from being used unlawfully. In the absence of a clear showing of
any direct injury to their person or the institution to which they belong, their
standing as members of the Congress cannot be upheld.38 They do not
specifically claim that the official actions complained of, i.e., the
memorandum of the Secretary of National Defense and the directive of the
AFP Chief of Staff regarding the interment of Marcos at the LNMB, encroach
on their prerogatives as legislators.1aшphi139

Exhaustion of Administrative Remedies

Petitioners violated the doctrines of exhaustion of administrative remedies

and hierarchy of courts. Under the doctrine of exhaustion of administrative
remedies, before a party is allowed to seek the intervention of the court, one
should have availed first of all the means of administrative processes
available.40 If resort to a remedy within the administrative machinery can
still be made by giving the administrative officer concerned every
opportunity to decide on a matter that comes within his jurisdiction, then
such remedy should be exhausted first before the court's judicial power can
be sought.41 For reasons of comity and convenience, courts of justice shy
away from a dispute until the system of administrative redress has been
completed and complied with, so as to give the administrative agency
concerned every opportunity to correct its error and dispose of the
case.42 While there are exceptions43 to the doctrine of exhaustion of
administrative remedies, petitioners failed to prove the presence of any of
those exceptions.

Contrary to their claim of lack of plain, speedy, adequate remedy in the

ordinary course of law, petitioners should be faulted for failing to seek
reconsideration of the assailed memorandum and directive before the
Secretary of National Defense. The Secretary of National Defense should be
given opportunity to correct himself, if warranted, considering that AFP
Regulations G 161-375 was issued upon his order. Questions on the
implementation and interpretation thereof demand the exercise of sound
administrative discretion, requiring the special knowledge, experience and
services of his office to determine technical and intricate matters of fact. If
petitioners would still be dissatisfied with the decision of the Secretary, they
could elevate the matter before the Office of the President which has control
and supervision over the Department of National Defense (DND).44

Hierarchy of Courts

In the same vein, while direct resort to the Court through petitions for the
extraordinary writs of certiorari, prohibition and mandamus are allowed
under exceptional cases,45 which are lacking in this case, petitioners cannot
simply brush aside the doctrine of hierarchy of courts that requires such
petitions to be filed first with the proper Regional Trial Court (RTC). The RTC is
not just a trier of facts, but can also resolve questions of law in the exercise
of its original and concurrent jurisdiction over petitions for certiorari,
prohibition and mandamus, and has the power to issue restraining order and
injunction when proven necessary.

In fine, the petitions at bar should be dismissed on procedural grounds alone.

Even if We decide the case based on the merits, the petitions should still be
denied.

Substantive Grounds

There is grave abuse of discretion when an act is (1) done contrary to the
Constitution, the law or jurisprudence or (2) executed whimsically,
capriciously or arbitrarily, out of malice, ill will or personal bias.46 None is
present in this case.
I
The President's decision to bury Marcos at the LNMB is in
accordance with the Constitution, the law or jurisprudence

Petitioners argue that the burial of Marcos at the LNMB should not be allowed
because it has the effect of not just rewriting history as to the Filipino
people's act of revolting against an authoritarian ruler but also condoning the
abuses committed during the Martial Law, thereby violating the letter and
spirit of the 1987 Constitution, which is a "post-dictatorship charter" and a
"human rights constitution." For them, the ratification of the Constitution
serves as a clear condemnation of Marcos' alleged "heroism." To support
their case, petitioners invoke Sections
2,47 11,48 13,49 23,50 26,51 2752 and 2853 of Article II, Sec. 17 of Art.
VII,54 Sec. 3(2) of Art. XIV,55 Sec. 1 of Art. XI,56 and Sec. 26 of Art.
XVIII57 of the Constitution.

There is no merit to the contention.

As the Office of the Solicitor General (OSG) logically reasoned out, while the
Constitution is a product of our collective history as a people, its entirety
should not be interpreted as providing guiding principles to just about
anything remotely related to the Martial Law period such as the proposed
Marcos burial at the LNMB.

Tańada v. Angara58 already ruled that the provisions in Article II of the

Constitution are not self-executing. Thus:

By its very title, Article II of the Constitution is a "declaration of principles

and state policies." The counterpart of this article in the 1935 Constitution is
called the "basic political creed of the nation" by Dean Vicente Sinco. These
principles in Article II are not intended to be self executing principles ready
for enforcement through the courts. They are used by the judiciary as aids or
as guides in the exercise of its power of judicial review, and by the legislature
in its enactment of laws. As held in the leading case of Kilosbayan,
Incorporated vs. Morato, the principles and state policies enumerated in
Article II x x x are not "self-executing provisions, the disregard of which can
give rise to a cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation."

In the same light, we held in Basco vs. Pagcor that broad constitutional
principles need legislative enactments to implement them x x x.

xxx
The reasons for denying a cause of action to an alleged infringement of
broad constitutional principles are sourced from basic considerations of due
process and the lack of judicial authority to wade "into the uncharted ocean
of social and economic policy making."59

In the same vein, Sec. 1 of Art. XI of the Constitution is not a self-executing

provision considering that a law should be passed by the Congress to clearly
define and effectuate the principle embodied therein. As a matter of fact,
pursuant thereto, Congress enacted R.A. No. 6713 ("Code of Conduct and
Ethical Standards for Public Officials and Employees"), R.A. No. 6770 ("The
Ombudsman Act of 1989"), R.A. No. 7080 (An Act Defining and Penalizing the
Crime of Plunder), and Republic Act No. 9485 ("Anti-Red Tape Act of 2007").
To complement these statutes, the Executive Branch has issued various
orders, memoranda, and instructions relative to the norms of behavior/code
of conduct/ethical standards of officials and employees; workflow
charts/public transactions; rules and policies on gifts and benefits; whistle
blowing and reporting; and client feedback program.

Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII of the
Constitution is also misplaced. Sec. 3(2) of Art. XIV refers to the
constitutional duty of educational institutions in teaching the values of
patriotism and nationalism and respect for human rights, while Sec. 26 of
Art. XVIII is a transitory provision on sequestration or freeze orders in relation
to the recovery of Marcos' ill-gotten wealth. Clearly, with respect to these
provisions, there is no direct or indirect prohibition to Marcos' interment at
the LNMB.

The second sentence of Sec. 17 of Art. VII pertaining to the duty of the
President to "ensure that the laws be faithfully executed," which is identical
to Sec. 1, Title I, Book III of the Administrative Code of 1987,60 is likewise not
violated by public respondents. Being the Chief Executive, the President
represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his or her department.61 Under
the Faithful Execution Clause, the President has the power to take "necessary
and proper steps" to carry into execution the law.62 The mandate is self-
executory by virtue of its being inherently executive in nature and is
intimately related to the other executive functions.63 It is best construed as
an imposed obligation, not a separate grant of power.64 The provision simply
underscores the rule of law and, corollarily, the cardinal principle that the
President is not above the laws but is obliged to obey and execute them.65
Consistent with President Duterte's mandate under Sec. 17, Art. VII of the
Constitution, the burial of Marcos at the LNMB does not contravene R.A. No.
289, R.A. No. 10368, and the international human rights laws cited by
petitioners.

A. On R.A. No. 28966

For the perpetuation of their memory and for the inspiration and emulation
of this generation and of generations still unborn, R.A. No. 289 authorized the
construction of a National Pantheon as the burial place of the mortal remains
of all the Presidents of the Philippines, national heroes and patriots.67 It also
provided for the creation of a Board on National Pantheon to implement the
law.68

On May 12, 1953, President Elpidio R. Quirino approved the site of the
National Pantheon at East Avenue, Quezon City.69 On December 23, 1953,
he issued Proclamation No. 431 to formally "withdraw from sale or
settlement and reserve as a site for the construction of the National
Pantheon a certain parcel of land located in Quezon City." However, on July 5,
1954, President Magsaysay issued Proclamation No. 42 revoking
Proclamation Nos. 422 and 431, both series of 1953, and reserving the
parcels of land embraced therein for national park purposes to be known as
Quezon Memorial Park.

It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard by
which a person's mortal remains may be interred at the LNMB, and that AFP
Regulations G 161-375 merely implements the law and should not violate its
spirit and intent. Petitioners claim that it is known, both here and abroad,
that Marcos' acts and deed - the gross human rights violations, the massive
corruption and plunder of government coffers, and his military record that is
fraught with myths, factual inconsistencies, and lies - are neither worthy of
perpetuation in our memory nor serve as a source of inspiration and
emulation of the present and future generations. They maintain that public
respondents are not members of the Board on National Pantheon, which is
authorized by the law to cause the burial at the LNMB of the deceased
Presidents of the Philippines, national heroes, and patriots.

Petitioners are mistaken. Both in their pleadings and during the oral
arguments, they miserably failed to provide legal and historical bases as to
their supposition that the LNMB and the National Pantheon are one and the
same. This is not at all unexpected because the LNMB is distinct and
separate from the burial place envisioned in R.A. No 289. The parcel of land
subject matter of President Quirino's Proclamation No. 431, which was later
on revoked by President Magsaysay's Proclamation No. 42, is different from
that covered by Marcos' Proclamation No. 208. The National Pantheon does
not exist at present. To date, the Congress has deemed it wise not to
appropriate any funds for its construction or the creation of the Board on
National Pantheon. This is indicative of the legislative will not to pursue, at
the moment, the establishment of a singular interment place for the mortal
remains of all Presidents of the Philippines, national heroes, and patriots.
Perhaps, the Manila North Cemetery, the Manila South Cemetery, and other
equally distinguished private cemeteries already serve the noble purpose but
without cost to the limited funds of the government.

Even if the Court treats R.A. No. 289 as relevant to the issue, still, petitioners'
allegations must fail. To apply the standard that the LNMB is reserved only
for the "decent and the brave" or "hero" would be violative of public policy as
it will put into question the validity of the burial of each and every mortal
remains resting therein, and infringe upon the principle of separation of
powers since the allocation of plots at the LNMB is based on the grant of
authority to the President under existing laws and regulations. Also, the
Court shares the view of the OSG that the proposed interment is not
equivalent to the consecration of Marcos' mortal remains. The act in itself
does not confer upon him the status of a "hero." Despite its name, which is
actually a misnomer, the purpose of the LNMB, both from legal and historical
perspectives, has neither been to confer to the people buried there the title
of "hero" nor to require that only those interred therein should be treated as
a "hero." Lastly, petitioners' repeated reference to a "hero's burial" and
"state honors," without showing proof as to what kind of burial or honors that
will be accorded to the remains of Marcos, is speculative until the specifics of
the interment have been finalized by public respondents.

B. On R.A. No. 1036870

For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375 by

implicitly disqualifying Marcos' burial at the LNMB because the legislature,
which is a co-equal branch of the government, has statutorily declared his
tyranny as a deposed dictator and has recognized the heroism and sacrifices
of the Human Rights Violations Victims (HRVVs)71 under his regime. They
insist that the intended act of public respondents damages and makes
mockery of the mandatory teaching of Martial Law atrocities and of the lives
and sacrifices of its victims. They contend that "reparation" under R.A. No.
10368 is non-judicial in nature but a political action of the State through the
Legislative and Executive branches by providing administrative relief for the
compensation, recognition, and memorialization of human rights victims.

We beg to disagree.

Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all Filipinos
who were victims of summary execution, torture, enforced or involuntary
disappearance, and other gross human rights violations committed from
September 21, 1972 to February 25, 1986. To restore their honor and dignity,
the State acknowledges its moral and legal obligation72 to provide
reparation to said victims and/or their families for the deaths, injuries,
sufferings, deprivations and damages they experienced.

In restoring the rights and upholding the dignity of HRVVs, which is part of
the right to an effective remedy, R.A. No. 10368 entitles them to monetary
and non-monetary reparation. Any HRVV qualified under the law73 shall
receive a monetary reparation, which is tax-free and without prejudice to the
receipt of any other sum from any other person or entity in any case
involving human rights violations.74 Anent the non-monetary reparation, the
Department of Health (DOH), the Department of Social Welfare and
Development (DSWD), the Department of Education (DepEd), the
Commission on Higher Education (CHED), the Technical Education and Skills
Development Authority (TESDA), and such other government agencies are
required to render the necessary services for the HRVVs and/or their families,
as may be determined by the Human Rights Victims' Claims Board (Board)
pursuant to the provisions of the law.75

Additionally, R.A. No. 10368 requires the recognition of the violations

committed against the HRVVs, regardless of whether they opt to seek
reparation or not. This is manifested by enshrining their names in the Roll of
Human Rights Violations Victims (Roll) prepared by the Board.76 The Roll
may be displayed in government agencies designated by the HRVV Memorial
Commission (Commission).77 Also, a Memorial/Museum/Library shall be
established and a compendium of their sacrifices shall be prepared and may
be readily viewed and accessed in the internet.78 The Commission is created
primarily for the establishment, restoration, preservation and conservation of
the Memorial/Museum/ Library/Compendium.79

To memorialize80 the HRVVs, the Implementing Rules and Regulations of R.A.

No. 10368 further mandates that: (1) the database prepared by the Board
derived from the processing of claims shall be turned over to the Commission
for archival purposes, and made accessible for the promotion of human
rights to all government agencies and instrumentalities in order to prevent
recurrence of similar abuses, encourage continuing reforms and contribute to
ending impunity;81 (2) the lessons learned from Martial Law atrocities and
the lives and sacrifices of HRVVs shall be included in the basic and higher
education curricula, as well as in continuing adult learning, prioritizing those
most prone to commit human rights violations;82 and (3) the Commission
shall publish only those stories of HRVVs who have given prior informed
consent.83

This Court cannot subscribe to petitioners' logic that the beneficial provisions
of R.A. No. 10368 are not exclusive as it includes the prohibition on Marcos'
burial at the LNMB. It would be undue to extend the law beyond what it
actually contemplates. With its victim-oriented perspective, our legislators
could have easily inserted a provision specifically proscribing Marcos'
interment at the LNMB as a "reparation" for the HRVVs, but they did not. As it
is, the law is silent and should remain to be so. This Court cannot read into
the law what is simply not there. It is irregular, if not unconstitutional, for Us
to presume the legislative will by supplying material details into the law. That
would be tantamount to judicial legislation.

Considering the foregoing, the enforcement of the HRVVs' rights under R.A.
No 10368 will surely not be impaired by the interment of Marcos at the
LNMB. As opined by the OSG, the assailed act has no causal connection and
legal relation to the law. The subject memorandum and directive of public
respondents do not and cannot interfere with the statutory powers and
functions of the Board and the Commission. More importantly, the HRVVs'
entitlements to the benefits provided for by R.A. No 10368 and other
domestic laws are not curtailed. It must be emphasized that R.A. No. 10368
does not amend or repeal, whether express or implied, the provisions of the
Administrative Code or AFP Regulations G 161-375:

It is a well-settled rule of statutory construction that repeals by implication

are not favored. In order to effect a repeal by implication, the later statute
must be so irreconcilably inconsistent and repugnant with the existing law
that they cannot be made to reconcile and stand together. The clearest case
possible must be made before the inference of implied repeal may be drawn,
for inconsistency is never presumed. There must be a showing of repugnance
clear and convincing in character. The language used in the later statute
must be such as to render it irreconcilable with what had been formerly
enacted. An inconsistency that falls short of that standard does not suffice. x
x x84
C. On International Human Rights Laws

Petitioners argue that the burial of Marcos at the LNMB will violate the rights
of the HRVVs to "full" and "effective" reparation, which is provided under
the International Covenant on Civil and Political Rights (ICCPR),85 the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law86 adopted by the U.N. General
Assembly on December 16, 2005, and the Updated Set of Principles for the
Protection and Promotion of Human Rights Through Action to Combat
Impunity87 dated February 8, 2005 by the U.N. Economic and Social Council.

We do not think so. The ICCPR,88 as well as the U.N. principles on reparation
and to combat impunity, call for the enactment of legislative measures,
establishment of national programmes, and provision for administrative and
judicial recourse, in accordance with the country's constitutional processes,
that are necessary to give effect to human rights embodied in treaties,
covenants and other international laws. The U.N. principles on reparation
expressly states:

Emphasizing that the Basic Principles and Guidelines contained herein do

not entail new international or domestic legal obligations but identify
mechanisms, modalities, procedures and methods for the implementation of
existing legal obligations under international human rights law and
international humanitarian law which are complementary though different as
to their norms[.][Emphasis supplied]

The Philippines is more than compliant with its international obligations.

When the Filipinos regained their democratic institutions after the successful
People Power Revolution that culminated on February 25, 1986, the three
branches of the government have done their fair share to respect, protect
and fulfill the country's human rights obligations, to wit:

The 1987 Constitution contains provisions that promote and protect human
rights and social justice.

As to judicial remedies, aside from the writs of habeas corpus,

amparo,89 and habeas data,90 the Supreme Court promulgated on March 1,
2007 Administrative Order No. 25-2007,91 which provides rules on cases
involving extra-judicial killings of political ideologists and members of the
media. The provision of the Basic Principles and Guidelines on the prevention
of the victim's re-traumatization applies in the course of legal and
administrative procedures designed to provide justice and reparation.92
On the part of the Executive Branch, it issued a number of administrative
and executive orders. Notable of which are the following:

1. A.O. No. 370 dated December 10, 1997 (Creating the Inter-Agency
Coordinating Committee on Human Rights)

2. E.O. No. 118 dated July 5, 1999 (Providing for the Creation of a National
Committee on the Culture of Peace)

3. E.O. No. 134 dated July 31, 1999 (Declaring August 12, 1999 and Every
12th Day of August Thereafter as International Humanitarian Law Day)

4. E.O. No. 404 dated January 24, 2005 (Creating the Government of the
Republic of the Philippines Monitoring Committee [GRPMC] on Human Rights
and International Humanitarian Law)

5. A.O. No. 157 dated August 21, 2006 (Creating an Independent

Commission to Address Media and Activist Killings)

6. A.O. No. 163 dated December 8, 2006 (Strengthening and Increasing the
Membership of the Presidential Human Rights Committee, and Expanding
Further the Functions of Said Committee)93

7. A.O. No. 181 dated July 3, 2007 (Directing the Cooperation and
Coordination Between the National Prosecution Service and Other Concerned
Agencies of Government for the Successful Investigation and Prosecution of
Political and Media Killings)

8. A.O. No. 197 dated September 25, 2007 (DND and AFP Coordination with
PHRC Sub-committee on Killings and Disappearances)

9. A.O. No. 211 dated November 26, 2007 (Creating a Task Force Against
Political Violence)

10. A.O. No. 249 dated December 10, 2008 (Further Strengthening
Government Policies, Plans, and Programs for the Effective Promotion and
Protection of Human Rights on the Occasion of the 60th Anniversary of the
Universal Declaration of Human Rights)

11. E.O. No. 847 dated November 23, 2009 (Creating the Church-Police-
Military-Liaison Committee to Formulate and Implement a Comprehensive
Program to Establish Strong Partnership Between the State and the Church
on Matters Concerning Peace and Order and Human Rights)
12. A.O. No. 35 dated November 22, 2012 (Creating the Inter-Agency
Committee on Extra-Legal Killings, Enforced Disappearances, Torture and
Other Grave Violations of the Right to Life, Liberty and Security of Persons)

13. A.O. No. 1 dated October 11, 2016 (Creating the Presidential Task Force
on Violations of the Right to Life, Liberty and Security of the Members of the
Media)

Finally, the Congress passed the following laws affecting human rights:

1. Republic Act No. 7438 (An Act Defining Certain Rights of Person Arrested,
Detained or Under Custodia/Investigation as well as the Duties of the
Arresting, Detaining and Investigating Officers and Providing Penalties for
Violations Thereof)

2. Republic Act No. 8371 (The Indigenous Peoples' Rights Act of 1997)

3. Republic Act No. 9201 (National Human Rights Consciousness Week Act of
2002)

4. Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)

5. Republic Act No. 9262 (Anti-Violence Against Women and Their Children
Act of 2004)

6. Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006)

7. Republic Act No. 9372 (Human Security Act of 2007)

8. Republic Act No. 9710 (The Magna Carta of Women)

9. Republic Act No. 9745 (Anti-Torture Act of 2009)

10. Republic Act No. 9851 (Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity)

11. Republic Act No. 10121 (Philippine Disaster Risk Reduction and
Management Act of 2010)

12. Republic Act No. 10168 (The Terrorism Financing Prevention and
Suppression Act of 2012)

13. Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance Act

of 2012)

14. Republic Act No. 10364 (Expanded Anti-Trafficking In Persons Act of

2012)
15. Republic Act No. 10368 (Human Rights Victims Reparation And
Recognition Act of 2013)

16. Republic Act No. 10530 (The Red Cross and Other Emblems Act of 2013)

Contrary to petitioners' postulation, our nation's history will not be instantly

revised by a single resolve of President Duterte, acting through the public
respondents, to bury Marcos at the LNMB. Whether petitioners admit it or
not, the lessons of Martial Law are already engraved, albeit in varying
degrees, in the hearts and minds of the present generation of Filipinos. As to
the unborn, it must be said that the preservation and popularization of our
history is not the sole responsibility of the Chief Executive; it is a joint and
collective endeavor of every freedom-loving citizen of this country.

Notably, complementing the statutory powers and functions of the Human

Rights Victims' Claims Board and the HRVV Memorial Commission in the
memorialization of HRVVs, the National Historical Commission of the
Philippines (NHCP), formerly known as the National Historical Institute
(NHI),94 is mandated to act as the primary government agency responsible
for history and is authorized to determine all factual matters relating to
official Philippine history.95 Among others, it is tasked to: (a) conduct and
support all kinds of research relating to Philippine national and local history;
(b) develop educational materials in various media, implement historical
educational activities for the popularization of Philippine history, and
disseminate, information regarding Philippine historical events, dates, places
and personages; and (c) actively engage in the settlement or resolution of
controversies or issues relative to historical personages, places, dates and
events.96 Under R.A. Nos. 10066 (National Cultural Heritage Act of
2009)97 and 10086 (Strengthening Peoples' Nationalism Through Philippine
History Act),98 the declared State policy is to conserve, develop, promote,
and popularize the nation's historical and cultural heritage and
resources.99 Towards this end, means shall be provided to strengthen
people's nationalism, love of country, respect for its heroes and pride for the
people's accomplishments by reinforcing the importance of Philippine
national and local history in daily life with the end in view of raising social
consciousness.100 Utmost priority shall be given not only with the research
on history but also its popularization.101

II.
The President's decision to bury Marcos at the LNMB is not done
whimsically, capriciously or arbitrarily, out of malice, ill will or
personal bias
Petitioners contend that the interment of Marcos at the LNMB will desecrate
it as a sacred and hallowed place and a revered national shrine where the
mortal remains of our country's great men and women are interred for the
inspiration and emulation of the present generation and generations to
come. They erred.

A. National Shrines

As one of the cultural properties of the Philippines, national historical shrines

(or historical shrines) refer to sites or structures hallowed and revered for
their history or association as declared by the NHCP.102 The national shrines
created by law and presidential issuance include, among others: Fort
Santiago (Dambana ng Kalayaan) in Manila;103 all battlefield areas in
Corregidor and Bataan;104 the site of First Mass in the Philippines in
Magallanes, Limasawa, Leyte;105 Aguinaldo Shrine or Freedom Shrine in
Kawit, Cavite;106 Fort San Antonio Abad National Shrine in Malate,
Manila;107 Tirad Pass National Shrine in Ilocos Sur;108 Ricarte
Shrine109 and Aglipay Shrine110 in Batac, Ilocos Norte; Liberty Shrine in
Lapu-Lapu, Cebu;111 "Red Beach" or the landing point of General Douglas
MacArthur and the liberating forces in Baras, Palo, Leyte;112 Dapitan City as
a National Shrine City in Zamboanga Del Norte;113 General Leandro Locsin
Fullon National Shrine in Hamtic, Antique;114 and Mabini Shrine in
Polytechnic University of the Philippines - Mabini Campus, Sta. Mesa,
Manila.115 As sites of the birth, exile, imprisonment, detention or death of
great and eminent leaders of the nation, it is the policy of the Government to
hold and keep the national shrines as sacred and hallowed place.116 P.O. No.
105117 strictly prohibits and punishes by imprisonment and/or fine the
desecration of national shrines by disturbing their peace and serenity
through digging, excavating, defacing, causing unnecessary noise, and
committing unbecoming acts within their premises. R.A. No. 10066 also
makes it punishable to intentionally modify, alter, or destroy the original
features of, or undertake construction or real estate development in any
national shrine, monument, landmark and other historic edifices and
structures, declared, classified, and marked by the NHCP as such, without
the prior written permission from the National Commission for Culture and
the Arts (NCAA).118

As one of the cultural agencies attached to the NCAA,119 the NHCP

manages, maintains and administers national shrines, monuments, historical
sites, edifices and landmarks of significant historico-cultural value.120 In
particular, the NHCP Board has the power to approve the declaration of
historic structures and sites, such as national shrines, monuments,
landmarks and heritage houses and to determine the manner of their
identification, maintenance, restoration, conservation, preservation and
protection.121

Excluded, however, from the jurisdiction of the NHCP are the military
memorials and battle monuments declared as national shrines, which have
been under the administration, maintenance and development of the
Philippine Veterans Affairs Office (PVAO) of the DND. Among the military
shrines are: Mt. Samat National Shrine in Pilar, Bataan;122 Kiangan War
Memorial Shrine in Linda, Kiangan, Ifugao;123 Capas National Shrine in
Capas, Tarlac;124 Ricarte National Shrine in Malasin, Batac, Ilocos
Norte;125 Balantang Memorial Cemetery National Shrine in Jaro,
Iloilo;126 Balete Pass National Shrine in Sta. Fe, Nueva Vizcaya;127 USAFIP,
NL Military Shrine and Park in Bessang Pass, Cervantes, Ilocos Sur;128 and
the LNMB in Taguig City, Metro Manila.129

B. The Libingan Ng Mga Bayani

At the end of World War II, the entire nation was left mourning for the death
of thousands of Filipinos. Several places served as grounds for the war dead,
such as the Republic Memorial Cemetery, the Bataan Memorial Cemetery,
and other places throughout the country. The Republic Memorial Cemetery,
in particular, was established in May 1947 as a fitting tribute and final resting
place of Filipino military personnel who died in World War II.

On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O. No. 77,
which ordered "the remains of the war dead interred at the Bataan Memorial
Cemetery, Bataan Province, and at other places in the Philippines, be
transferred to, and reinterred at, the Republic Memorial Cemetery at Fort
Wm Mckinley, Rizal Province" so as to minimize the expenses for the
maintenance and upkeep, and to make the remains accessible to the
widows, parents, children, relatives, and friends.

On October 27, 1954, President Magsaysay issued Proclamation No. 86,

which changed the name of Republic Memorial Cemetery to Libingan Ng Mga
Bayani to symbolize "the cause for which our soldiers have died" and to
"truly express the nations esteem and reverence for her war dead."130

On July 12, 1957, President Carlos P. Garcia issued Proclamation No. 423,
which reserved for military purposes, under the administration of the AFP
Chief of Staff, the land where LNMB is located. The LNMB was part of a
military reservation site then known as Fort Wm McKinley (now known as Fort
Andres Bonifacio).

On May 28, 1967, Marcos issued Proclamation No. 208, which excluded the
LNMB from the Fort Bonifacio military reservation and reserved the LNMB for
national shrine purposes under the administration of the National Shrines
Commission (NSC) under the DND.

On September 24, 1972, Marcos, in the exercise of his powers as the AFP
Commander-in-Chief, and pursuant to Proclamation No. 1081 dated
September 21, 1972, and General Order No. 1 dated September 22, 1972, as
amended, issued Presidential Decree (P.D.) No. 1 which reorganized the
Executive Branch of the National Government through the adoption of the
Integrated Reorganization Plan (IRP). Section 7, Article XV, Chapter I, Part XII
thereof abolished the NSC and its functions together with applicable
appropriations, records, equipment, property and such personnel as may be
necessary were transferred to the NHI under the Department of Education
(DEC). The NHI was responsible for promoting and preserving the Philippine
cultural heritage by undertaking, inter alia, studies on Philippine history and
national heroes and maintaining national shrines and monuments.131

Pending the organization of the DEC, the functions relative to the

administration, maintenance and development of national shrines tentatively
integrated into the PVAO in July 1973.

On January 26, 1977, President Marcos issued P.D. No. 1076. Section 7,
Article XV, Chapter I, Part XII of the IRP was repealed on the grounds
that "the administration, maintenance and development of national shrines
consisting of military memorials or battle monuments can be more
effectively accomplished if they are removed from the [DEC] and transferred
to the [DND] by reason of the latter s greater capabilities and resources" and
that "the functions of the [DND] are more closely related and relevant to the
charter or significance of said national shrines." Henceforth, the PVAO
through the Military Shrines Service (MSS), which was created to perform the
functions of the abolished NSC - would administer, maintain and develop
military memorials and battle monuments proclaimed as national shrines.

On July 25, 1987, President Corazon C. Aquino issued the Administrative

Code. The Code retains PVAO under the supervision and control of the
Secretary of National Defense.132 Among others, PVAO shall administer,
develop and maintain military shrines.133 With the approval of PVAO
Rationalization Plan on June 29, 2010, pursuant to E.O. No. 366 dated
October 4, 2004, MSS was renamed to Veterans Memorial and Historical
Division, under the supervision and control of PVAO, which is presently
tasked with the management and development of military shrines and the
perpetuation of the heroic deeds of our nation's veterans.

As a national military shrine, the main features, structures, and facilities of

the LNMB are as follows:

1. Tomb of the Unknown Soldiers - The main structure constructed at the

center of the cemetery where wreath laying ceremonies are held when
Philippine government officials and foreign dignitaries visit the LNMB. The
following inscription is found on the tomb: "Here lies a Filipino soldier whose
name is known only to God." Behind the tomb are three marble pillars
representing the three main island groups of the Philippines - Luzon, Visayas
and Mindanao. Buried here were the remains of 39,000 Filipino soldiers who
were originally buried in Camp O'Donnell Concentration Camp and Fort
Santiago, Intramuros, Manila.

2. Heroes Memorial Gate - A structure shaped in the form of a large

concrete tripod with a stairway leading to an upper view deck and a metal
sculpture at the center. This is the first imposing structure one sees upon
entering the grounds of the cemetery complex.

3. Black Stone Walls - Erected on opposite sides of the main entrance road
leading to the Tomb of the Unknown Soldiers and just near the Heroes
Memorial are two 12-foot high black stone walls which bear the words, "I do
not know the dignity of his birth, but I do know the glory of his death." that
General Douglas MacArthur made during his sentimental journey to the
Philippines in 1961.

4. Defenders of Bataan and Corregidor Memorial Pylon - Inaugurated

on April 5, 1977 by Secretary Renato S. De Villa in memory of the defenders
of Bataan and Corregidor during World War II. This monument is dedicated as
an eternal acknowledgment of their valor and sacrifice in defense of the
Philippines.

5. Korean Memorial Pylon - A towering monument honoring the 112

Filipino officers and men who, as members of the Philippine Expeditionary
Forces to Korea (PEFTOK), perished during the Korean War.

6. Vietnam Veterans Memorial Pylon - Dedicated to the members of the

Philippine contingents and Philippine civic action groups to Vietnam
(PHILCON-V and PHILCAG-V) who served as medical, dental, engineering
construction, community and psychological workers, and security
complement. They offered tremendous sacrifices as they alleviated human
suffering in war-ravaged Vietnam from 1964-1971. Inscribed on the memorial
pylon are the words: "To build and not to destroy, to bring the Vietnamese
people happiness and not sorrow, to develop goodwill and not hatred."

7. Philippine World War II Guerillas Pylon - Erected by the Veterans

Federation of the Philippines as a testimony to the indomitable spirit and
bravery of the Filipino guerillas of World War II who refused to be cowed into
submission and carried on the fight for freedom against an enemy with
vastly superior arms and under almost insurmountable odds. Their hardship
and sufferings, as well as their defeats and victories, are enshrined in this
memorial.134

Contrary to the dissent, P.D. No. 105135 does not apply to the LNMB. Despite
the fact that P.D. No. 208 predated P.D. No. 105,136 the LNMB was not
expressly included in the national shrines enumerated in the latter.137 The
proposition that the LNMB is implicitly covered in the catchall phrase "and
others which may be proclaimed in the future as National Shrines" is
erroneous because:

(1) As stated, Marcos issued P.D. No. 208 prior to P.D. No. 105.

(2) Following the canon of statutory construction known as ejusdem

generis,138 the LNMB is not a site "of the birth, exile, imprisonment,
detention or death of great and eminent leaders of the nation." What P.D. No.
105 contemplates are the following national shrines: Fort Santiago
("Dambana ng Kalayaan"), all battlefield areas in Corregidor and Bataan, the
site of First Mass in the Philippines, Aguinaldo Shrine or Freedom Shrine, Fort
San Antonio Abad National Shrine, Tirad Pass National Shrine, Ricarte Shrine,
Aglipay Shrine, Liberty Shrine, "Red Beach" or the landing point of General
Douglas MacArthur and the liberating forces, Dapitan City, General Leandro
Locsin Fullon National Shrine, and Mabini Shrine. Excluded are the military
memorials and battle monuments declared as national shrines under the
PVAO, such as: Mt. Samat National Shrine, Kiangan War Memorial Shrine,
Capas National Shrine, Ricarte National Shrine, Balantang Memorial
Cemetery National Shrine, Balete Pass National Shrine; USAFIP, NL Military
Shrine and Park, and the LNMB.

(3) Since its establishment, the LNMB has been a military shrine under the
jurisdiction of the PVAO. While P.D. No. 1 dated September 24, 1972
transferred the administration, maintenance and development of national
shrines to the NHI under the DEC, it never actually materialized. Pending the
organization of the DEC, its functions relative to national shrines were
tentatively integrated into the PVAO in July 1973. Eventually, on January 26,
1977, Marcos issued P.D. No. 1076. The PVAO, through the MSS, was tasked
to administer, maintain, and develop military memorials and battle
monuments proclaimed as national shrines. The reasons being that "the
administration, maintenance and development of national shrines consisting
of military memorials or battle monuments can be more effectively
accomplished if they are removed from the [DEC] and transferred to the
[DND] by reason of the latter's greater capabilities and resources" and that
"the functions of the [DND] are more closely related and relevant to the
charter or significance of said national shrines."

The foregoing interpretation is neither narrow and myopic nor downright

error. Instead, it is consistent with the letter and intent of P.D. No. 105.

Assuming that P.D. No. 105 is applicable, the descriptive words "sacred and
hallowed" refer to the LNMB as a place and not to each and every mortal
remains interred therein. Hence, the burial of Marcos at the LNMB does not
diminish said cemetery as a revered and respected ground. Neither does it
negate the presumed individual or collective "heroism" of the men and
women buried or will be buried therein. The "nations esteem and reverence
for her war dead," as originally contemplated by President Magsaysay in
issuing Proclamation No. 86, still stands unaffected. That being said, the
interment of Marcos, therefore, does not constitute a violation of the
physical, historical, and cultural integrity of the LNMB as a national military
shrine.

At this juncture, reference should be made to Arlington National Cemetery

(Arlington), which is identical to the LNMB in terms of its prominence in the
U.S. It is not amiss to point that our armed forces have been patterned after
the U.S. and that its military code produced a salutary effect in the
Philippines' military justice system.139 Hence, relevant military rules,
regulations, and practices of the U.S. have persuasive, if not the same, effect
in this jurisdiction.

As one of the U.S. Army national military cemeteries,140 the Arlington is

under the jurisdiction of the Department of the Army.141 The Secretary of
the U.S. Army has the responsibility to develop, operate, manage,
administer, oversee, and fund the Army national military cemeteries in a
manner and to standards that fully honor the service and sacrifices of the
deceased members of the armed forces buried or inurned therein, and shall
prescribe such regulations and policies as may be necessary to administer
the cemeteries.142 In addition, the Secretary of the U.S. Army is empowered
to appoint an advisory committee, which shall make periodic reports and
recommendations as well as advise the Secretary with respect to the
administration of the cemetery, the erection of memorials at the cemetery,
and master planning for the cemetery.143

Similar to the Philippines, the U.S. national cemeteries are established as

national shrines in tribute to the gallant dead who have served in the U.S.
Armed Forces.144 The areas are protected, managed and administered as
suitable and dignified burial grounds and as significant cultural
resources.145 As such, the authorization of activities that take place therein
is limited to those that are consistent with applicable legislation and that are
compatible with maintaining their solemn commemorative and historic
character.146

The LNMB is considered as a national shrine for military memorials. The

PVAO, which is empowered to administer, develop, and maintain military
shrines, is under the supervision and control of the DND. The DND, in turn, is
under the Office of the President.

The presidential power of control over the Executive Branch of Government

is a self-executing provision of the Constitution and does not require
statutory implementation, nor may its exercise be limited, much less
withdrawn, by the legislature.147 This is why President Duterte is not bound
by the alleged 1992 Agreement148 between former President Ramos and the
Marcos family to have the remains of Marcos interred in Batac, Ilocos Norte.
As the incumbent President, he is free to amend, revoke or rescind political
agreements entered into by his predecessors, and to determine policies
which he considers, based on informed judgment and presumed wisdom, will
be most effective in carrying out his mandate.

Moreover, under the Administrative Code, the President has the power to
reserve for public use and for specific public purposes any of the lands of the
public domain and that the reserved land shall remain subject to the specific
public purpose indicated until otherwise provided by law or
proclamation.149 At present, there is no law or executive issuance
specifically excluding the land in which the LNMB is located from the use it
was originally intended by the past Presidents. The allotment of a cemetery
plot at the LNMB for Marcos as a former President and Commander-in-
Chief,150 a legislator,151 a Secretary of National Defense,152 a military
personnel,153 a veteran,154 and a Medal of Valor awardee,155 whether
recognizing his contributions or simply his status as such, satisfies the public
use requirement. The disbursement of public funds to cover the expenses
incidental to the burial is granted to compensate him for valuable public
services rendered.156 Likewise, President Duterte's determination to have
Marcos' remains interred at the LNMB was inspired by his desire for national
healing and reconciliation. Presumption of regularity in the performance of
official duty prevails over petitioners' highly disputed factual allegation that,
in the guise of exercising a presidential prerogative, the Chief Executive is
actually motivated by utang na loob (debt of gratitude) and bayad
utang (payback) to the Marcoses. As the purpose is not self-evident,
petitioners have the burden of proof to establish the factual basis of their
claim. They failed. Even so, this Court cannot take cognizance of factual
issues since We are not a trier of facts.

C. AFP Regulations on the LNMB

A review of the regulations issued by the AFP Chief of Staff as to who may
and may not be interred at the LNMB underscores the nature and purpose of
the LNMB as an active military cemetery/grave site.

On May 13, 1947, the Chief of Staff of the Philippine Army, by the direction of
the President and by order of the Secretary of National Defense, issued
General Orders No. 111, which constituted and activated, as of said date, the
Graves Registration Platoon as a unit of the Philippine Army.

On February 2, 1960, the AFP Chief of Staff, by order of the Secretary of

National Defense, issued AFP Regulations G 161-371 (Administrative and
Special Staff Services, Grave Registration Service), which provided that the
following may be interred in the LNMB: (a) World War II dead of the AFP and
recognized guerillas; (b) Current dead of the AFP; (c) Retired military
personnel of the AFP; (d) Remains of former members of the AFP who died
while in the active service and in the Retired List of the AFP now interred at
different cemeteries and other places throughout the Philippines or the
Secretary of National Defense; and (e) Others upon approval of the Congress
of the Philippines, the President of the Philippines or the Secretary of
National Defense. The regulation also stated that the AFP Quartermaster
General will be responsible for, among other matters, the efficient operation
of the Graves Registration Service; the interment, disinterment and
reinterment of the dead mentioned above; and preservation of military
cemeteries, national cemeteries, and memorials.
On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of National
Defense, issued AFP Regulations G 161-372 (Administration and Operation of
AFP Graves Registration Installations), which superseded AFP Regulations G
161-371. It provided that the following may be interred in the LNMB: (a)
Deceased Veterans of the Philippine Revolution of 1896/World War I; (b)
Deceased World War II members of the AFP and recognized guerillas; (c)
Deceased military personnel of the AFP who died while in the active duty; (d)
Deceased retired military personnel of the AFP; (e) Deceased military
personnel of the AFP interred at different cemeteries and other places
outside the LNMB; and (f) Such remains of persons as the Commander-in-
Chief of the AFP may direct. The remains of the following were not allowed to
be interred in the LNMB: (a) The spouse of an active, or retired, deceased
military personnel, recognized guerillas who himself/herself is not a military
personnel; and (b) AFP personnel who were retireable but
separated/reverted/discharged for cause, or joined and aided the enemy of
the Republic of the Philippines, or were convicted of capital or other criminal
offenses, involving moral turpitude. The regulation also stated that the
Quartermaster General shall be responsible for, among other matters, the
efficient operation of the AFP graves registration installations; the interment,
disinterment and reinterment of deceased military personnel mentioned
above; and the preservation of military cemeteries, proper marking and
official recording of graves therein.

On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of National

Defense Minister, issued AFP Regulations G 161-373 (Allocation of Cemetery
Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G
161-372. It enumerated a list of deceased person who may be interred at the
LNMB, namely: (a) Medal of Valor Awardees; (b) Presidents or Commanders-
in-Chief, AFP; (c) Ministers of National Defense; (d) Chiefs of Staff, AFP; (e)
General/Flag Officers of the AFP; (f) Active and retired military personnel of
the AFP; (g) Veterans of Philippine Revolution of 1896, WWI, WWII and
recognized guerillas; and (h) Government Dignitaries, Statesmen, National
Artist and other deceased persons whose interment or reinterment has been
approved by the Commander-in-Chief, Batasang Pambansa or the Minister of
National Defense. The regulation also stated that the Quartermaster General
shall be responsible for the allocation of specific section/areas for the said
deceased persons, while the Commanding Officer of the Quartermaster
Graves Registration Company shall be charged with the preparation of grave
sites, supervision of burials at LNMB and the registration of graves.
On March 27, 1998, the AFP Chief of Staff, by order of the Secretary of
National Defense, issued AFP Regulations G 161-374 (Allocation of Cemetery
Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G
161-373. It provided that the following may be interred in the LNMB: (a)
Medal of Valor Awardees; (b) Presidents or Commanders-inChief, AFP; (c)
Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag
Officers of the AFP; (f) Active and retired military personnel of the AFP; (g)
Veterans of Philippine Revolution of 1890, WWI, WWII and recognized
guerillas; (h) Government Dignitaries, Statesmen, National Artists and other
deceased persons whose interment or reinterment has been approved by the
Commander-in-Chief, Congress or Secretary of National Defense; and (i)
Former Presidents, Secretaries of Defense, CSAFP, Generals/Flag Officers,
Dignitaries, Statesmen, National Artists, widows of former Presidents,
Secretaries of National Defense and Chief of Staff. The remains of the
following were not allowed to be interred in the LNMB: (a) Personnel who
were dishonorably separated/reverted/discharged from the service; and (b)
Authorized personnel who were convicted by final judgment of an offense
involving moral turpitude. Like AFP Regulations G 161-373, it stated that the
Quartermaster General shall be responsible for the allocation of specific
section/areas for the deceased persons, whereas the Commanding Officer of
the Quartermaster Graves Registration Unit shall be charged with the
preparation of grave sites, supervision of burials, and the registration of
graves.

Finally, on September 11, 2000, the AFP Chief of Staff, by the order of the
Secretary of National Defense, issued AFP Regulations G 161-375 (Allocation
of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP
Regulations G 161-374. The regulation stated that the Chief of Staff shall be
responsible for the issuance of interment directive for all active military
personnel for interment, authorized personnel (such as those former
members of the AFP who laterally entered or joined the Philippine Coast
Guard [PCG] and the Philippine National Police [PNP]), and retirees, veterans
and reservists enumerated therein. The Quartermaster General is tasked to
exercise over-all supervision in the implementation of the regulation and the
Commander ASCOM, PA through the Commanding Officer of Grave Services
Unit is charged with the registration of the deceased/graves, the allocation of
specific section/area at the LNMB for interment of deceased, the preparation
of grave sites, and the supervision of burials.

Under AFP Regulations G 161-375, the following are eligible for interment at
the LNMB: (a) Medal of Valor Awardees; (b) Presidents or Commanders-in-
Chief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e)
General/Flag Officers of the AFP; (f) Active and retired military personnel of
the AFP to include active draftees and trainees who died in line of duty,
active reservists and CAFGU Active Auxiliary (CAA) who died in combat
operations or combat related activities; (g) Former members of the AFP who
laterally entered or joined the PCG and the PNP; (h) Veterans of Philippine
Revolution of 1890, WWI, WWII and recognized guerillas; (i) Government
Dignitaries, Statesmen, National Artists and other deceased persons whose
interment or reinterment has been approved by the Commander-in-Chief,
Congress or the Secretary of National Defense; and G) Former Presidents,
Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of
Former Presidents, Secretaries of National Defense and Chief of Staff. Similar
to AFP Regulations G 161-374, the following are not qualified to be interred in
the LNMB: (a) Personnel who were dishonorably
separated/reverted/discharged from the service; and (b) Authorized
personnel who were convicted by final judgment of an offense involving
moral turpitude.

In the absence of any executive issuance or law to the contrary, the AFP
Regulations G 161-375 remains to be the sole authority in determining who
are entitled and disqualified to be interred at the LNMB. Interestingly, even if
they were empowered to do so, former Presidents Corazon C. Aquino and
Benigno Simeon C. Aquino III, who were themselves aggrieved at the Martial
Law, did not revise the rules by expressly prohibiting the burial of Marcos at
the LNMB. The validity of AFP Regulations G 161-375 must, therefor, be
sustained for having been issued by the AFP Chief of Staff acting under the
direction of the Secretary of National Defense, who is the alter ego of the
President.

x x x In Joson v. Torres, we explained the concept of the alter ego principle or

the doctrine of qualified political agency and its limit in this wise:

Under this doctrine, which recognizes the establishment of a single

executive, all executive and administrative organizations are adjuncts of the
Executive Department, the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except in cases where
the Chief Executive is required by the Constitution or law to act in
person or the exigencies of the situation demand that he act
personally, the multifarious executive and administrative functions of the
Chief Executive are performed by and through the executive departments,
and the acts of the Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or
reprobated by the Chief Executive presumptively the acts of the Chief
Executive. (Emphasis ours, citation omitted.)157

It has been held that an administrative regulation adopted pursuant to law

has the force and effect of law and, until set aside, is binding upon executive
and administrative agencies, including the President as the chief executor of
laws.158

1. Qualification under the AFP Regulations

AFP Regulations G 161-375 should not be stricken down in the absence of

clear and unmistakable showing that it has been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction. Neither could it be
considered ultra vires for purportedly providing incomplete, whimsical, and
capricious standards for qualification for burial at the LNMB.

To compare, We again refer to the U.S. Army regulations on Arlington. In the

U.S., the Secretary of the Army, with the approval of the Secretary of
Defense, determines eligibility for interment or inurnment in the Army
national military cemeteries.159 Effective October 26, 2016, the rule160 is
as follows:

Only those who qualify as a primarily eligible person or a derivatively eligible

person are eligible for interment in Arlington National Cemetery, unless
otherwise prohibited as provided for in §§ 553.19161-553.20,162 provided
that the last period of active duty of the service member or veteran ended
with an honorable discharge.

(a) Primarily eligible persons. The following are primarily eligible persons for
purposes of interment:

(1) Any service member who dies on active duty in the U.S. Armed Forces
(except those service members serving on active duty for training only), if
the General Courts Martial Convening Authority grants a certificate of
honorable service.

(2) Any veteran retired from a Reserve component who served a period of
active duty (other than for training), is carried on the official retired list, and
is entitled to receive military retired pay.

(3) Any veteran retired from active military service and entitled to receive
military retired pay.
(4) Any veteran who received an honorable discharge from the Armed Forces
prior to October 1, 1949, who was discharged for a permanent physical
disability, who served on active duty (other than for training), and who would
have been eligible for retirement under the provisions of 10 U.S.C. 1201 had
the statute been in effect on the date of separation.

(5) Any veteran awarded one of the following decorations:

(i) Medal of Honor;163

(ii) Distinguished Service Cross, Air Force Cross, or Navy Cross;

(iii) Distinguished Service Medal;

(iv) Silver Star; or

(v) Purple Heart.

(6) Any veteran who served on active duty (other than active duty for
training) and who held any of the following positions:

(i) President or Vice President of the United States;

(ii) Elected member of the U.S. Congress;

(iii) Chief Justice of the Supreme Court of the United States or Associate
Justice of the Supreme Court of the United States;

(iv) A position listed, at the time the person held the position, in 5 U.S.C.
5312164 or 5313165 (Levels I and II of the Executive Schedule); or

(v) Chief of Mission of a Category 4, 5, or post if the Department of State

classified that post as a Category 4, 5, or 5+ post during the person's tenure
as Chief of Mission.

(7) Any former prisoner of war who, while a prisoner of war, served
honorably in the active military service, and who died on or after November
30, 1993.

(b) Derivatively eligible persons. The following individuals are derivatively

eligible persons for purposes of interment who may be interred if space is
available in the gravesite of the primarily eligible person:

(1) The spouse of a primarily eligible person who is or will be interred in

Arlington National Cemetery. A former spouse of a primarily eligible person is
not eligible for interment in Arlington National Cemetery under this
paragraph.
(2) The spouse of an active duty service member or an eligible veteran, who
was:

(i) Lost or buried at sea, temporarily interred overseas due to action by the
Government, or officially determined to be missing in action;

(ii) Buried in a U.S. military cemetery maintained by the American Battle

Monuments Commission; or

(iii) Interred in Arlington National Cemetery as part of a group burial (the

derivatively eligible spouse may not be buried in the group burial gravesite).

(3) The parents of a minor child or a permanently dependent adult child,

whose remains were interred in Arlington National Cemetery based on the
eligibility of a parent at the time of the child's death, unless eligibility of the
non-service connected parent is lost through divorce from the primarily
eligible parent.

(4) An honorably discharged veteran who does not qualify as a primarily

eligible person, if the veteran will be buried in the same gravesite as an
already interred primarily eligible person who is a close relative, where the
interment meets the following conditions:

(i) The veteran is without minor or unmarried adult dependent children;

(ii) The veteran will not occupy space reserved for the spouse, a minor child,
or a permanently dependent adult child;

(iii) All other close relatives of the primarily eligible person concur with the
interment of the veteran with the primarily eligible person by signing a
notarized statement;

(iv) The veteran's spouse waives any entitlement to interment in Arlington

National Cemetery, where such entitlement might be based on the veteran's
interment in Arlington National Cemetery. The Executive Director may set
aside the spouse's waiver, provided space is available in the same gravesite,
and all close relatives of the primarily eligible person concur;

(v) Any cost of moving, recasketing, or revaulting the remains will be paid
from private funds.

There is a separate list of eligible with respect to the inurnment of cremated

remains in the Columbarium,166 interment of cremated remains in the
Unmarked Area,167 and group burial.168 As a national military cemetery,
eligibility standards for interment, inurnment, or memorialization in Arlington
are based on honorable military service.169 Exceptions to the eligibility
standards for new graves, which are rarely granted, are for those persons
who have made significant contributions that directly and
substantially benefited the U.S. military.170

Judging from the foregoing, it is glaring that the U.S. Army regulations on
Arlington and the AFP Regulations G 161-375 on the LNMB, as a general rule,
recognize and reward the military services or military related activities of the
deceased. Compared with the latter, however, the former is actually less
generous in granting the privilege of interment since only the spouse or
parent, under certain conditions, may be allowed "if space is available in the
gravesite of the primarily eligible person."

It is not contrary to the "well-established custom," as the dissent described

it, to argue that the word "bayani" in the LNMB has become a misnomer
since while a symbolism of heroism may attach to the LNMB as a national
shrine for military memorial, the same does not automatically attach to its
feature as a military cemetery and to those who were already laid or will be
laid therein. As stated, the purpose of the LNMB, both from the legal and
historical perspectives, has neither been to confer to the people buried there
the title of "hero" nor to require that only those interred therein should be
treated as a "hero." In fact, the privilege of internment at the LNMB has been
loosen up through the years. Since 1986, the list of eligible includes not only
those who rendered active military service or military-related activities but
also non-military personnel who were recognized for their significant
contributions to the Philippine society (such as government dignitaries,
statesmen, national artists, and other deceased persons whose interment or
reinterment has been approved by the Commander-in-Chief, Congress or
Secretary of National Defense). In 1998, the widows of former Presidents,
Secretaries of National Defense and Chief of Staff were added to the list.
Whether or not the extension of burial privilege to civilians is unwarranted
and should be restricted in order to be consistent with the original purpose of
the LNMB is immaterial and irrelevant to the issue at bar since it is
indubitable that Marcos had rendered significant active military service and
military-related activities.

Petitioners did not dispute that Marcos was a former President and
Commander-in-Chief, a legislator, a Secretary of National Defense, a military
personnel, a veteran, and a Medal of Valor awardee. For his alleged human
rights abuses and corrupt practices, we may disregard Marcos as a President
and Commander-in-Chief, but we cannot deny him the right to be
acknowledged based on the other positions he held or the awards he
received. In this sense, We agree with the proposition that Marcos should be
viewed and judged in his totality as a person. While he was not all good, he
was not pure evil either. Certainly, just a human who erred like us.

Our laws give high regard to Marcos as a Medal of Valor awardee and a
veteran. R.A. No. 9049171 declares the policy of the State "to consistently
honor its military heroes in order to strengthen the patriotic spirit and
nationalist consciousness of the military."172 For the "supreme self-sacrifice
and distinctive acts of heroism and gallantry,"173 a Medal of Valor awardee
or his/her dependents/heirs/beneficiaries are entitled to the following social
services and financial rewards:

1. Tax-exempt lifetime monthly gratuity of Twenty Thousand Pesos

(₱20,000.00), which is separate and distinct from any salary or pension that
the awardee currently receives or will receive from the government of the
Philippines;174

2. Precedence in employment in government agencies or government-owned

or controlled corporation, if the job qualifications or requirements are met;

3. Priority in the approval of the awardee's housing application under existing

housing programs of the government;

4. Priority in the acquisition of public lands under the Public Land Act and
preferential right in the lease of pasture lands and exploitation of natural
resources;

5. Privilege of obtaining loans in an aggregate amount not exceeding Five

Hundred Thousand Pesos (₱500,000.00) from governmentowned or
controlled financial institutions without having to put up any collateral or
constitute any pledge or mortgage to secure the payment of the loan;

6. Twenty (20%) percent discount from all establishments relative to

utilization of transportation services, hotels and similar lodging
establishments, restaurants, recreation and sport centers and purchase of
medicine anywhere in the country;

7. Twenty (20%) percent discount on admission fees charged by theaters,

cinema houses and concert halls, circuses, carnivals and other similar places
of culture, leisure and amusement;

8. Free medical and dental services and consultation in hospital and clinics
anywhere in the country;
9. Exemption from the payment of tuition and matriculation fees in public or
private schools, universities, colleges and other educational institutions in
any pre-school, baccalaureate or post graduate courses such as or including
course leading to the degree of Doctor of Medicine (MD), Bachelor of Laws
(LLB), and Bachelor of Science in Nursing (BSN) or allied and similar courses;
and

10. If interested and qualified, a quota is given to join the cadet corps of the
Philippine Military Academy or otherwise priority for direct commission, call
to active duty (CAD) and/or enlistment in regular force of the AFP.

On the other hand, in recognizing their patriotic services in times of war and
peace for the cause of freedom and democracy; for the attainment of
national unity, independence, and socioeconomic advancement; and for the
maintenance of peace and order,175 R.A. No. 6948, as amended,176 grants
our veterans177 and their dependents or survivors with pension (old age,
disability, total administrative disability, and death) and non-pension (burial,
education, hospitalization, and medical care and treatment) benefits as well
as provisions from the local governments. Under the law, the benefits may
be withheld if the Commission on Human Rights certifies to the AFP General
Headquarters that the veteran has been found guilty by final judgment of
a gross human rights violation while in the service, but this factor shall not
be considered taken against his next of kin.178

2. Disqualification under the AFP Regulations

Aside from being eligible for burial at the LNMB, Marcos possessed none of
the disqualifications stated in AFP Regulations G 161-375. He was neither
convicted by final judgment of the offense involving moral turpitude nor
dishonorably separated/reverted/discharged from active military service.

Petitioners, however, protest that a narrow interpretation of the AFP

regulations disregards historical context and the rule on statutory
construction. They urge the Court to construe statutes not literally but
according to their spirit and reason.

It is argued that Marcos committed offenses involving moral turpitude for his
gross human rights violations, massive graft and corruption, and dubious
military records, as found by foreign and local courts as well as
administrative agencies. By going into exile, he deliberately evaded liability
for his actions. And by allowing death to overtake him, he inevitably escaped
the prospect of facing accountability for his crimes. They also contend that
his removal in the 1986 popular uprising is a clear sign of his discharge from
the AFP. The People Power Revolution was the direct exercise of the Filipinos'
power to overthrow an illegitimate and oppressive regime. As a sovereign
act, it necessarily includes the power to adjudge him as dishonorably
discharged from the AFP.

Furthermore, according to petitioners, to limit the application of the

disqualifying provisions of AFP Regulations G 161-375 only to soldiers would
be unfair (since, unlike Presidents, soldiers have an additional cause for
disqualification) and lead to absurd results (because soldiers who were
dishonorably discharged would be disqualified for acts that are less atrocious
than that committed by Marcos). Also, the AFP regulations would place
Marcos in the same class as the other Philippine Presidents when in fact he is
a class of his own, sui generis. The other Presidents were never removed by
People Power Revolution and were never subject of laws declaring them to
have committed human rights violations. Thus, the intended burial would be
an act of similarly treating persons who are differently situated.

Despite all these ostensibly persuasive arguments, the fact remains that
Marcos was not convicted by final judgment of any offense involving moral
turpitude. No less than the 1987 Constitution mandates that a person shall
not be held to answer for a criminal offense without due process of law and
that, "[i]n all criminal prosecutions, the accused shall be presum innocent
until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his
behalf."179 Even the U.N. principles on reparation and to combat impunity
cited by petitioners unequivocally guarantee the rights of the accused,
providing that:

XIII. Rights of others

27. Nothing in this document is to be construed as derogating from

internationally or nationally protected rights of others, in particular the right
of an accused person to benefit from applicable standards of due process.

xxx

PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED

Before a commission identifies perpetrators in its report, the individuals

concerned shall be entitled to the following guarantees:
(a) The commission must try to corroborate information implicating
individuals before they are named publicly;

(b) The individuals implicated shall be afforded an opportunity to provide a

statement setting forth their version of the facts either at a hearing
convened by the commission while conducting its investigation or through
submission of a document equivalent to a right of reply for inclusion in the
commission's file.

To note, in the U.S., a person found to have committed a Federal or State

capital crime (i.e., a crime which a sentence of imprisonment for life or death
penalty may be imposed) but who has not been convicted by reason of not
being available for trial due to death or flight to avoid prosecution, may be
ineligible for interment, inurnment, or memorialization in an Army national
military cemetery. Nevertheless, such ineligibility must still observe the
procedures specified in § 553.21.180

The various cases cited by petitiOners, which were decided with finality by
courts here and abroad, have no bearing in this case since they are
merely civil in nature; hence, cannot and do not establish moral turpitude.

Also, the equal protection clause is not violated. Generally, there is no

property right to safeguard because even if one is eligible to be buried at the
LNMB, such fact would only give him or her the privilege to be interred
therein. Unless there is a favorable recommendation from the Commander--
in-Chief, the Congress or the Secretary of National Defense, no right can be
said to have ripen. Until then, such inchoate right is not legally demandable
and enforceable.

Assuming that there is a property right to protect, the requisites of equal

protection clause are not met.181 In this case, there is a real and substantial
distinction between a military personnel and a former President. The
conditions of dishonorable discharge under the Articles of War182 attach
only to the members of the military. There is also no substantial distinction
between Marcos and the three Philippine Presidents buried at the LNMB
(Presidents Quirino, Garcia, and Macapagal). All of them were not convicted
of a crime involving moral turpitude. In addition, the classification between a
military personnel and a former President is germane to the purposes of
Proclamation No. 208 and P.D. No. 1076. While the LNMB is a national shrine
for military memorials, it is also an active military cemetery that
recognizes the status or position held by the persons interred therein.
Likewise, Marcos was honorably discharged from military service. PVAO
expressly recognized him as a retired veteran pursuant to R.A. No. 6948, as
amended. Petitioners have not shown that he was dishonorably discharged
from military service under AFP Circular 17, Series of 1987 (Administrative
Discharge Prior to Expiration of Term of Enlistment) for violating Articles 94,
95 and 97 of the Articles of War.183 The NHCP study184 is incomplete with
respect to his entire military career as it failed to cite and include the official
records of the AFP.

With respect to the phrase "[p]ersonnel who were dishonorably

separated/reverted/discharged from the service," the same should be viewed
in light of the definition provided by AFP Regulations G 161-375 to the
term "active service" which is "[s]ervice rendered by a military person as a
Commissioned Officer, enlisted man/woman, probationary officer, trainee or
draftee in the Armed Forces of the Philippines and service rendered by
him/her as a civilian official or employee in the Philippine Government prior
to the date of his/her separation or retirement from the Armed Forces of the
Philippines, for which military and/or civilian service he/she shall have
received pay from the Philippine Government, and/or such others as may be
hereafter be prescribed by law as active service (PD 1638, as
amended)."185 To my mind, the word "service" should be construed as that
rendered by a military person in the AFP, including civil service, from the
time of his/her commission, enlistment, probation, training or drafting, up to
the date of his/her separation or retirement from the AFP. Civil service after
honorable separation and retirement from the AFP is outside the context of
"service" under AFP Regulations G 161-375.

Hence, it cannot be conveniently claimed that Marcos' ouster from the

presidency during the EDSA Revolution is tantamount to his dishonorable
separation, reversion or discharge from the military service. The fact that the
President is the Commander-in-Chief of the AFP under the 1987 Constitution
only enshrines the principle of supremacy of civilian authority over the
military. Not being a military person who may be prosecuted before the court
martial, the President can hardly be deemed "dishonorably
separated/reverted/discharged from the service" as contemplated by AFP
Regulations G 161-375. Dishonorable discharge through a successful
revolution is an extra-constitutional and direct sovereign act of the people
which is beyond the ambit of judicial review, let alone a mere administrative
regulation.
It is undeniable that former President Marcos was forced out of office by the
people through the so-called EDSA Revolution. Said political act of the people
should not be automatically given a particular legal meaning other than its
obvious consequence- that of ousting him as president. To do otherwise
would lead the Court to the treacherous and perilous path of having to make
choices from multifarious inferences or theories arising from the various acts
of the people. It is not the function of the Court, for instance, to divine the
exact implications or significance of the number of votes obtained in
elections, or the message from the number of participants in public
assemblies. If the Court is not to fall into the pitfalls of getting embroiled in
political and oftentimes emotional, if not acrimonious, debates, it must
remain steadfast in abiding by its recognized guiding stars - clear
constitutional and legal rules - not by the uncertain, ambiguous and
confusing messages from the actions of the people.

Conclusion

In sum, there is no clear constitutional or legal basis to hold that there was a
grave abuse of discretion amounting to lack or excess of jurisdiction which
would justify the Court to interpose its authority to check and override an act
entrusted to the judgment of another branch. Truly, the President's discretion
is not totally unfettered. "Discretion is not a freespirited stallion that runs
and roams wherever it pleases but is reined in to keep it from straying. In its
classic formulation, 'discretion is not unconfined and vagrant' but 'canalized
within banks that keep it from overflowing.'"186 At bar, President Duterte,
through the public respondents, acted within the bounds of the law and
jurisprudence. Notwithstanding the call of human rights advocates, the Court
must uphold what is legal and just. And that is not to deny Marcos of his
rightful place at the LNMB. For even the Framers of our Constitution intend
that full respect for human rights is available at any stage of a person's
development, from the time he or she becomes a person to the time he or
she leaves this earth.187

There are certain things that are better left for history - not this Court - to
adjudge. The Court could only do so much in accordance with the clearly
established rules and principles. Beyond that, it is ultimately for the people
themselves, as the sovereign, to decide, a task that may require the better
perspective that the passage of time provides. In the meantime, the
country must mov'e on and let this issue rest.

WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED.

Necessarily, the Status Quo Ante Order is hereby LIFTED.
Sereno, C. J., See dissenting opinion.

Carpio, J., See dissenting opinion.

Velasco, Jr.,** J., I concur in the ponencia as also in the opinion of Justice
Mendoza.

Leonardo-De Castro, J., I concur in the ponencia and separate opinion of

Justice Mendoza.

Brion, J., with separate concurring opinion.

Bersamin, J., See separate opinion.

Del Castillo, J., I join the separate opinion.

Perez, J., See separate opinion.

Mendoza, J., See separate opinion.

Reyes, J., Inhibited/no part.

Perlas-Bernabe, J., I join the separate opinion of J. Mendoza.

Leonen, J., I dissent. See separate opinion.

Jardeleza, J., I join dissent of J. Caguioa.

Caguioa, J., I dissent. See separate opinion.

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on November 8, 2016 a Decision/Resolution, copy

attached herewith, was rendered by the Supreme Court in the above-entitled
cases, the original of which was received by this Office on November 10,
2016 at 5:15 p.m.

Very truly yours,

(SGD) FELIPA G. BORLONGAN-ANAMA

Clerk of Court

Footnotes
* Rene A.V. Saguisag, et al. filed a petition for certiorari-in-intervention.

** On official leave.

1 See Annex "A" of Petition for Prohibition of Lagman, et al., G.R. No. 225984.

2 See Annex "B,", id. (Emphasis in the original)

3 G.R. No. 225973.

4 TRINIDAD H. REPUNO, BIENVENIDO LUMBERA, BONIFACIO P. ILAGAN, NERI

JAVIER COLMENARES, MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN NG EX-
DETAINEES LABAN SA DETENSYON AT ARESTO (SELDA) represented by
DIONITO CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL ROSARlO,
FELIX C. DALISAY and DANILO M. DELA FUENTE.

5 G.R. No. 225973.

6 RENE A. Q. SAGUISAG, JR.

7 RENE A. C. SAGUISAG, III.

8 G.R. No. 225984.

9 FIND CO-CHAIRPERSON, NILDA L. SEVILLA, REP. TEDDY BRAWNER

BAGUILAT, JR., REP. TOMASITO S. VILLARIN, REP. EDGAR R. ERICE and REP.
EMMANUEL A. BILLONES.

10 G.R. No. 226097

11 HILDA B. NARCISO, AIDA F. SANTOS-MARANAN, JO-ANN Q. MAGLIPON,

ZENAIDA S. MIQUE, FE B. MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D.
AGUILAR, MINERVA G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUUE G.
CRlSMO, FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE ond ABDULMARI
DE LEON IMAO, JR.

12 G.R. No. 226116.

13 JOEL C. LAMANGAN, FRANCIS X. MAGLAPUS, EDILBERTO C. DE JESUS,

BELINDA O. CUNANAN, CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES,
SR., ARNOLD MARIE NOEL, CARLOS MANUEL, EDMUND S. TAYAO, DANILO P.
OLIVARES, NOEL F. TRINIDAD, JESUS DELA FUENTE, REBECCA M. QUIJANO, FR.
BENIGNO BELTRAN, SVD, ROBERTO S. VERZOLA, AUGUSTO A. LEGASTO, JR.
and JULIA KRISTINA P. LEGASTO

14 G.R. No. 226117.

15 JOHN ARVIN BUENAAGUA, JOANNE ROSE SACE LIM, and JUAN ANTONIO
RAROGAL MAGALANG

16 G.R. No. 226120.

17 Defined as native peoples who have historically inhabited Mindanao,

Palawan and Sulu, who are largely of the Islamic Faith, under Sec. 4, par. d.8,
RA 9710 othenvise known as The Magna Carta of Women.

18 G.R. No. 226294.

19 Belgica, et al., v. Han. Exec. Sec. Ochoa, Jr., 721 Phil. 416, 518-519
(2013).

20 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism

Council, 646 Phil. 452, 471 (2010).

21 Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 519,
citing Province of North Cotabato, et al. v. Government of the Republic of the
Philippines Peace Panel on Ancestral Domain (GRP), et al., 589 Phil. 387, 481
(2008).

22 Province of North Cotabato v. Government of the Republic of the

Philippines Peace Panel on Ancestral Domain (GRP), et al., supra.

23 Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 519-520.

24 Province of North Cotabato v. Government of the Republic of the

Philippines Peace Panel on Acestral Domain (GRP), et al., supra note 21.

25 Tańada v. Cuenco, 100 Phil. 1101 (1957); Belgica, et al. v. Hon. Exec. Sec.
Ochoa, Jr., supra note 19, at 526.

26 Id.; id.

27 Black's Law Dictionary, 941 (1991 6th ed.).

28 Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 527.

29 Id. at 527, citing La Bugal-B'Laan, Inc. v. Sec. Ramos, 465 Phil. 860, 890
(2004).

30 Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 528.

31 Rene A.V. Saguisag, Sr. and Rene A.Q. Saguisag, Jr.

32 Prof David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 762 (2006).

33 Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 (2000).

34 Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110.

35 The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728,

January 21, 2015, 747 SCRA 1, 46.

36 258 Phil 479 (1989).

37 REP. TEDDY BRAWNER BAGUILAT JR., REP. TOMASITO S. VILLARIN, REP.

EDGAR R. ERICE and REP. EMMANUEL A. BILLONES.

38 BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil.

623, 648 (2000).

39 Biraogo v. The Philippine Truth Commission, 651 Phil. 374, 439 (2010).

40 Maglalang v. Philippine Amusement and Gaming Corp., 723 Phil. 546, 556
(2013).

41 Id.

42 Id. at 557.

43 Nonetheless, the doctrine of exhaustion of administrative remedies and

the corollary doctrine of primary jurisdiction, which are based on sound
public policy and practical considerations, are not inflexible rules. There are
many accepted exceptions, such as: (a) where there is estoppel on the part
of the party invoking the doctrine; (b) where the challenged administrative
act is patently illegal, amounting to lack of jurisdiction; (c) where there is
unreasonable delay or official inaction that will irretrievably prejudice the
complainant; (d) where the amount involved is relatively small so as to make
the rule impractical and oppressive; (e) where the question involved is purely
legal and will ultimately have to be decided by the courts of justice; (f) where
judicial intervention is urgent; (g) when its application may cause great and
irreparable damage; (h) where the controverted acts violate due process; (i)
when the issue of nonexhaustion of administrative remedies has been
rendered moot; (j) when there is no other plain, speedy and adequate
remedy; (k) when strong public interest is involved; and, (l) in quo
warranto proceedings. (See Republic v. Lacap, 546 Phil. 87, 97-98 [2007]).

44 Book IV, Chapter 1, Section 1 of the Administrative Code.

45 Direct resort to the Court is allowed as follows (1) when there are genuine
issues of constitutionality that must be addressed at the most immediate
time; (2) when the issues involved are of transcendental importance; (3)
when cases of first impression are involved; and (4) when constitutional
issues raised are better decided by the Court; (5) when the time element
presented in the case cannot be ignored; (6) when the filed petition reviews
the act of a constitutional organ; (7) when petitioners rightly claim that they
had no other plain, speedy and adequate remedy in the ordinary course of
law that could free them from the injurious effects of respondents' acts in
violation of their right to freedom of expression; and (8) when the petition
includes questions that are "dictated by public welfare and the advancement
of public policy, or demanded by the broader interest of justice, or the orders
complained of were foundo be patent nullities, or the appeal was considered
as clearly an inappropriate remedy." (See The Diocese of Bacolod v.
Commission on Elections, supra note 35, at 45-49.

46 Almario, et al. v. Executive Secretary, et al., 714 Phil. 127, 169 (2013).

47 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.

48 SECTION 11. The State values the dignity of every human person and
guarantees full respect for human rights.

49 SECTION 13. The State recognizes the vital role of the youth in nation-
building and shall promote and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate in the youth atriotism and
nationalism, and encourage their involvement in public and civic affairs.

50 SECTION 23. The State shall encourage non-governmental, community-

based, or sectoral organizations that promote the welfare of the nation.

51 SECTION 26. The State shall guarantee equal access to opportunities for
public service, and prohibit political dynasties as may be defined by law.

52 SECTION 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and
corruption.

53 SECTION 28. Subject to reasonable conditions prescribed by law, the

State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.

54 SECTION 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed.
55 SECTION 3. x x x

(2) They shall inculcate patriotism and nationalism, foster love of humanity,
respect for human rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights and duties of
citizenship, strengthen ethical and spiritual values, develop moral character
and personal discipline, encourage critical and creative thinking, broaden
scientific and technological knowledge, and promote vocational efficiency.

56 SECTION 1. Public office is a public trust. Public officers and employees

must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.

57 SECTION 26. The authority to issue sequestration or freeze orders under

Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-
gotten wealth shall remain operative for not more than eighteen months
after the ratification of this Constitution. However, in the national interest, as
certified by the President, the Congress may extend said period.

A sequestration or freeze order shall be issued only upon showing of a prima

facie case. The order and the list of the sequestered or frozen properties
shall forthwith be registered with the proper court. For orders issued before
the ratification of this Constitution, the corresponding judicial action or
proceeding shall be filed within six months from its ratification. For those
issued after such ratification, the judicial action or proceeding shall be
commenced within six months from the issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no judicial

action or proceeying is commenced as herein provided.

58 338 Phil. 546 (1997).

59 Tańada v. Angara, supra, at 580-581. (Citations omitted). The case was

cited in Tondo Medical Center Employees Ass'n v. Court of Appeals, 554 Phil.
609, 625-626 (2007); Bases Conversion and Development Authority v.
COA, 599 Phil. 455, 465 (2009); and Representatives Espina, et al. v. Han.
Zamora, Jr. (Executive Secretary), et al., 645 Phil. 269, 278-279 (2010). See
also Manila Prince Hotel v. GSIS, 335 Phil. 82, 101-102 (1997).

60 Executive Order No. 292, s. 1987, Signed on July 25, 1987.

61 Biraogo v. The Phil. Truth Commission of 2010, 651 Phil. 374, 451 (2010).
62 Philippine Constitution Association v. Enriquez, G.R. No. 113105, 113174,
113766, and 113888, August 19, 1994, 235 SCRA 506, 552.

63 Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et

al., G.R. No. 212426 & 212444, January 12, 2016.

64 Almario, et al. v. Executive Secretary, et al., supra note 46, at 164, as

cited in Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa,
Jr., supra note 63.

65 Almario, et al. v. Executive Secretary, et al., supra note 46, at 164.

66 Entitled "An Act Providing for the Construction of a National Pantheon for
Presidents of the Philippines, National Heroes and Patriots of the Country,"
approved on June 16, 1948.

67 Section 1.

68 Sec. 2. There is hereby created a Board on National Pantheon composed

of the Secretary of the Interior, the Secretary of Public Works and
Communications and the Secretary of Education and two private citizens to
be appointed by the President of the Philippines with the consent of the
Commission on Appointments which shall have the following duties and
functions:

(a) To determine the location of a suitable site for the construction of the said
National Pantheon, and to have such site acquired, surveyed and fenced for
this purpose and to delimit and set aside a portion thereof wherein shall be
interred the remains of all Presidents of the Philippines and another portion
wherein the remains of heroes, patriots and other great men of the country
shall likewise be interred;

(b) To order and supervise the construction thereon of uniform monuments,

mausoleums, or tombs as the Board may deem appropriate;

(c) To cause to be interred therein the mortal remains of all Presidents of the
Philippines, the national heroes and patriots;

(d) To order and supervise the construction of a suitable road leading to the
said National Pantheon from the nearest national or provincial road; and

(e) To perform such other functions as may be necessary to carry out the
purposes of this Act.

69 Office of the President of the Philippines. (1953). Official Month in

Review. Official Gazette of the Republic of the Philippines, 49(5), lxv-lxxvi
(http://www.gov.ph/1953/05/01/official-month-in-review-may-1953/, last
accessed on October 28, 2016).

70 Approved on February 25, 2013, R.A. No. 10368 is the consolidation of

House Bill (H.B.) No. 5990 and Senate Bill (S.B.) No. 3334. H.B. No. 5990,
entitled "An Act Providing Compensation To Victims Of Human Rights
Violations During The Marcos Regime, Documentation Of Said Violations,
Appropriating Funds Therefor, And For Other Purposes," was co-sponsored by
Lorenzo R. Tańada III, Edcel C. Lagman, Rene L. Relampagos, Joseph Emilio A.
Abaya, Walden F. Bello, Kaka J. Bag-ao, Teodoro A. Casińo, Neri Javier
Colmenares, Rafael V. Mariano, Luzviminda C. Ilagan, Antonio L. Tinio,
Emerenciana A. De Jesus, and Raymond V. Palatino. No member of the House
signified an intention to ask any question during the period of sponsorship
and debate, and no committee or individual amendments were made during
the period of amendments (Congressional Record, Vol. 2, No. 44, March 14,
2012, p. 3). The bill was approved on Second Reading (Congressional Record,
Vol. 2, No. 44, March 14, 2012, p. 4). On Third Reading, the bill was approved
with 235 affirmative votes, no negative vote, and no abstention
(Congressional Record, Vol. 2, No. 47, March 21, 2012, p. 15). On the other
hand, S.B. No. 3334, entitled "An Act Providing For Reparation And
Recognition Of The Survivors And Relatives Of The Victims Of Violations Of
Human Rights And Other Related Violations During The Regime Of Former
President Ferdinand Marcos, Documentation Of Said Violations, Appropriating
Funds Therefor, And For Other Purposes," was coauthored by Sergio R.
Osmena III, Teofisto D. Guingona III, Francis G. Escudero, and Franklin M.
Drilon. Senators Drilon and Panfilo M. Lacson withdrew their reservation to
interpellate on the measure (Senate Journal No. 41, December 10, 2012, p.
1171). The bill was approved on Second Reading with no objection (Senate
Journal No. 41, December 10, 2012, p. 1172). On Third Reading, the bill was
approved with 18 senators voting in favor, none against, and no abstention
(Senate Journal No. 44, December 17, 2012, p. 1281).

71 Human Rights Violations Victim (HRVV) refers to a person whose human

rights were violated by persons acting in an official capacity and/or agents of
the State as defined herein. In order to qualify for reparation under this Act,
the human rights violation must have been committed during the period
from Soptomboc 21, 1972 to February 25, 1986: Provided, however, That
victims of human rights violations that were committed one (1) month before
September 21, 1972 and one (1) month after February 25, 1986 shall be
entitled to reparation under this Act if they can establish that the violation
was committed:
(1) By agents of the State and/or persons acting in an official capacity as
defined hereunder;

(2) For the purpose of preserving, maintaining, supporting or promoting the

said regime; or

(3) To conceal abuses during the Marcos regime and/or the effects of Martial
Law. (Sec. 3[c] of R.A. No. 10368).

72 Section 11 Article II and Section 12 Article III of the 1987 Constitution as

well as Section 2 of Article II of the 1987 Constitution in relation to the
Universal Declaration of Human Rights, the International Covenant on Civil
and Political Rights (ICCPR), the Convention Against Torture (CAT) and Other
Cruel, Inhuman or Degrading Treatment or Punishment, and other
international human rights laws and conventions (See Sec. 2 of R.A. No.
10368).

73 The claimants in the class suit and direct action plaintiffs in the Human
Rights Litigation Against the Estate of Ferdinand E. Marcos (MDL No. 840, CA
No. 86-0390) in the US Federal District Court of Honolulu, Hawaii wherein a
favorable judgment has been rendered, and the HRVVs recognized by
the Bantayog Ng Mga Bayani Foundation shall be extended the conclusive
presumption that they are HRVVs. However, the Human Rights Victims'
Claims Board is not deprived of its original jurisdiction and its inherent power
to determine the extent of the human rights violations and the corresponding
reparation and/or recognition that may be granted (See Sec. 17 of R.A. No.
10368).

74 Sec. 4 of R.A. No. 10368.

75 Sec. 5 of R.A. No. 10368.

76 Sec. 26 of R.A. No. 10368.

77 Id.

78 Id.

79 Sec. 27 of R.A. No. 10368.

80 "Memorialization" refers to the preservation of the memory of the human

rights violations victims, objects, events and lessons learned during the
Marcos regime. This is part of the inherent obligation of the State to
acknowledge the wrongs committed in the past, to recognize the heroism
and sacrifices of all Filipinos who were victims of gross human rights
violations during Martial Law, and to prevent the recurrence of similar
abuses. (Sec. 1 [j], Rule II, IRR of R.A. No. 10368).

81 Sec. 1, Rule VII, IRR of R.A. No. 10368.

82 Sec. 2, Rule VII, IRR of R.A. No. 10368.

83 Sec. 3, Rule VII, IRR of R.A. No. 10368.

84 Remman Enterprises, Inc., et al. v. Professional Regulatory Board of Real

Estate Service, et al., 726 Phil. 104, 118-119 (2014).

85 Article 2

1. Each State Party to the present Covenant undertakes to respect and to

ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures,

each State Party to the present Covenant undertakes to take the necessary
steps, in accordance with its constitutional processes and with the provisions
of the present Covenant, to adopt such laws or other measures as may be
necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized
are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies
when granted.

86 IX. Reparation for harm suffered

15. Adequate, effective and prompt reparation is intended to promote justice

by redressing gross violations of international human rights law or serious
violations of international humanitarian law. Reparation should be
proportional to the gravity of the violations and the harm suffered. In
accordance with its domestic laws and international legal obligations, a State
shall provide reparation to victims for acts or omissions which can be
attributed to the State and constitute gross violations of international human
rights law or serious violations of international humanitarian law. In cases
where a person, a legal person, or other entity is found liable for reparation
to a victim, such party should provide reparation to the victim or compensate
the State if the State has already provided reparation to the victim.

16. States should endeavour to establish national programmes for reparation

and other assistance to victims in the event that the parties liable for the
harm suffered are unable or unwilling to meet their obligations.

17. States shall, with respect to claims by victims, enforce domestic

judgements for reparation against individuals or entities liable for the harm
suffered and endeavour to enforce valid foreign legal judgements for
reparation in accordance with domestic law and international legal
obligations. To that end, States should provide under their domestic laws
effective mechanisms for the enforcement of reparation judgements.

18. In accordance with domestic law and international law, and taking
account of individual circumstances, victims of gross violations of
international human rights law and serious violations of international
humanitarian law should, as appropriate and proportional to the gravity of
the violation and the circumstances of each case, be provided with full and
effective reparation, as laid out in principles 19 to 23, which include the
following forms: restitution, compensation, rehabilitation, satisfaction and
guarantees of non-repetition.

19. Restitution should, whenever possible, restore the victim to the original
situation before the gross violations of international human rights law or
serious violations of international humanitarian law occurred. Restitution
includes, as appropriate: restoration of liberty, enjoyment of human rights,
identity, family life and citizenship, return to one's place of residence,
restoration of employment and return of property.

20. Compensation should be provided for any economically assessable

damage, as appropriate and proportional to the gravity of the violation and
the circumstances of each case, resulting from gross violations of
international human rights law and serious violations of international
humanitarian law, such as:

(a) Physical or mental harm;

(b) Lost opportunities, including employment, education and social benefits;

(c) Material damages and loss of earnings, including loss of earning potential;

(d) Moral damage;

(e) Costs required for legal or expert assistance, medicine and medical
services, and psychological and social services.

21. Rehabilitation should include medical and psychological care as well as

legal and social services.

22. Satisfaction should include, where applicable, any or all of the following:

(a) Effective measures aimed at the cessation of continuing violations;

(b) Verification of the facts and full and public disclosure of the truth to the
extent that such disclosure does not cause further harm or threaten the
safety and interests of the victim, the victim's relatives, witnesses, or
persons who have intervened to assist the victim or prevent the occurrence
of further violations;

(c) The search for the whereabouts of the disappeared, for the identities of
the children abducted, and for the bodies of those killed, and assistance in
the recovery, identification and reburial of the bodies in accordance with the
expressed or presumed wish of the victims, or the cultural practices of the
families and communities;

(d) An official declaration or a judicial decision restoring the dignity, the

reputation and the rights of the victim and of persons closely connected with
the victim;

(e) Public apology, including acknowledgment of the facts and acceptance of

responsibility;

(f) Judicial and administrative sanctions against persons liable for the
violations;

(g) Commemorations and tributes to the victims;

(h) Inclusion of an accurate account of the violations that occurred in

international human rights law and international humanitarian law training
and in educational material at all levels.

23. Guarantees of non-repetition should include, where applicable, any or all

of the following measures, which will also contribute to prevention:
(a) Ensuring effective civilian control of military and security forces;

(b) Ensuring that all civilian and military proceedings abide by international
standards of due process, fairness and impartiality;

(c) Strengthening the independence of the judiciary;

(d) Protecting persons in the legal, medical and health-care professions, the
media and other related professions, and human rights defenders;

(e) Providing, on a priority and continued basis, human rights and

international humanitarian law education to all sectors of society and training
for law enforcement officials as well as military and security forces;

(f) Promoting the observance of codes of conduct and ethical norms, in

particular international standards, by public servants, including law
enforcement, correctional, media, medical, psychological, social service and
military personnel, as well as by economic enterprises;

(g) Promoting mechanisms for preventing and monitoring social conflicts and
their resolution;

(h) Reviewing and reforming laws contributing to or allowing gross violations

of international human rights law and serious violations of international
humanitarian law.

87 PRINCIPLE 2. THE INALIENABLE RIGHT TO THE TRUTH

Every people has the inalienable right to know the truth about past events
concerning the perpetration of heinous crimes and about the circumstances
and reasons that led, through massive or systematic violations, to the
perpetration of those crimes. Full and effective exercise of the right to the
truth provides a vital safeguard against the recurrence of violations.

PRINCIPLE 3. THE DUTY TO PRESERVE MEMORY

A people's knowledge of the history of its oppression is part of its heritage

and, as such, must be ensured by appropriate measures in fulfillment of the
State's duty to preserve archives and other evidence concerning violations of
human rights and humanitarian law and to facilitate knowledge of those
violations. Such measures shall be aimed at preserving the collective
memory from extinction and, in particular, at guarding against the
development of revisionist and negationist arguments.

88 Adopted and opened for signature, ratification and accession by General

Assembly resolution 2200A (XXI) of December 16, 1966, entry into force
March 23, 1976, in accordance with Article 49
(http.//www.ohchr.org/en/professionalinterest/pages/ccpr.aspx, last accessed
on October 28, 2016).

89 A.M. No. 07-9-12-SC, Effective on October 24, 2007.

90 A.M. No. 08-1-16-SC, Effective on February 2, 2008.

91 Reiterated in OCA Circular No. 103-07 dated October 16, 2007 and OCA
Circular No. 46-09 dated April 20, 2009.

92 VI. Treatment of victims

10. Victims should be treated with humanity and respect for their dignity and
human rights, and appropriate measures should be taken to ensure their
safety, physical and psychological well-being and privacy, as well as those of
their families. The State should ensure that its domestic laws, to the extent
possible, provide that a victim who has suffered violence or trauma should
benefit from special consideration and care to avoid his or her re-
traumatization in the course of legal and administrative procedures designed
to provide justice and reparation.

93 Originated from A.O. No. 101 dated Docember 13, 1988 and A.O. No. 29
dated January 27, 2002.

94 Sec. 4 of R.A. No. 10086.

95 Sec. 5 ofR.A. No. 10086.

96 Id.

97 Approved on March 26, 2010.

98 Approved on May 12, 2010 and took effect on June 13, 2010.

99 Sec. 2 of R.A. 10066 and Sec. 2 of R.A. 10086.

100 Id.

101 Id.

102 See Sec. 4 (d) ofR.A. 10066 in relation to Sec. 3 (u) of R.A. No. 10066 and
Sec. 3 (n) of R.A. No. 10086. The Implementing Rules and Regulations of R.A.
No. 10086 specifically defines National Historical Shrine as "a site or
structure hallowed and revered for its association to national heroes or
historical events declared by the Commission." (Art. 6[q.], Rule 5, Title I)

103 R.A. No. 597, as amended by R.A. Nos. 1569 and 1607.
104 E.O. No. 58 issued on August 16, 1954 (See Arula v. Brig. Gen. Espino,
etc., et al., 138 Phil. 570, 589-591 (1969)).

105 R.A. No. 2733.

106 R.A. No. 4039.

107 Proclamation No. 207 dated May 27, 1967.

108 Proclamation No. 433 dated July 23, 1968.

109 R.A. No. 5648.

110 R.A. No. 5649.

111 R.A. No. 5695.

112 Proclamation No. 618 dated October 13, 1969, as amended by

Proclamation No. 1272 dated June 4, 1974.

113 R.A. No. 6468.

114 Batas Pambansa Bilang 309 dated November 14, 1982.

115 Proclamation No. 1992 dated February 8, 2010.

116 P.D. No. 105 dated January 24, 1973.

117 Entitled "Declaring National Shrines As Sacred (Hallowed) Places And

Prohibiting Desecration Thereof" (Signed on January 24, 1973)

118 Sec. 48 (b).

119 Sec. 31 (d) of R.A. No. 10066.

120 Sec. 5 (d) of R.A. No. 10086.

121 Article 12 (e) and (f) Rule 8 Title III of the Implementing Rules and
Regulations of R.A. No. 10086.

122 Proclamation No. 25 dated April 18, 1966.

123 Proclamation No. 1682 dated October 17, 1977.

124 Proclamation No. 842 dated December 7, 1991 and R.A. No. 8221.

125 Proclamation No. 228 dated August 12, 1993.

126 Proclamation No. 425 dated July 13, 1994.

127 R.A. No. 10796.

128 http://server.pvao.mil.ph/PDF/shrines/usafipnl.pdf, last accessed on
September 19, 2016.

129 Proclamation No. 208 dated May 28, 1967.

130 See Whereas Clause of Proclamation No. 86.

131 Section I, Article XV, Chapter I, Part XII of the IRP.

132 Book IV, Title VIII, Subtitle II, Chapter 1, Sec. 18.

133 Book IV, Title VIII, Subtitle II, Chapter 5, Sec. 32(4).

134 See Annex to the Manifestation of the AFP Adjutant General

and http://server.pvao.mil.ph/PDF/shrines/libingan.pdf (last accessed on
October 25, 2016).

135 P.D. No. 105 is an issuance of Marcos, acting as the AFP Commander-in-
Chief and by virtue of his powers under the Martial Law. It was not a law that
was enacted by the Congress.

136 P.D. No. 208 was signed on May 28, 1967 while P.D. No. 105 was signed
on January 24, 1973.

137 Among those named were the birthplace of Dr. Jose Rizal in Calamba,
Laguna, Talisay, Dapitan City, where the hero was exiled for four years, Fort
Santiago, Manila, where he was imprisoned in 1896 prior to his execution;
Talaga, Tanauan, Batangas where Apolinario Mabini was born, Pandacan,
Manila, where Mabini's house in which he died, is located; Aguinaldo Mansion
in Kawit, Cavite, where General Emilio Aguinaldo, first President of the
Philippines, was born, and where Philippine Independence was solemnly
proclaimed on June 12, 1898; and Batan, Aklan, where the "Code of
Kalantiyaw" was promulgated in 1433.

138 Under the principle of ejusdem generis, "where a general word or phrase
follows an enumeration of particular and specific words of the same class or
where the latter follow the former, the general word or phrase is to be
construed to include, or to be restricted to persons, things or cases akin to,
resembling, or of the same kind or class as those specifically mentioned."

The purpose and rationale of the principle was explained by the Court
in National Power Corporation v. Angas as follows:

The purpose of the rule on ejusdem generis is to give effect to both the
particular and general words, by treating the particular words as indicating
the class and the general words as including all that is embraced in said
class, although not specifically named by the particular words. This is
justified on the ground that if the lawmaking body intended the general
terms to be used in their unrestricted sense, it would have not made an
enumeration of particular subjects but would have used only general
terms. 2 Sutherland, Statutory Construction, 3rd ed., pp. 395-400.
(See Pelizloy Realty Corp. v. The Province of Benguet, 708 Phil. 466, 480-481
[2013], as cited in Alta Vista Golf and Country Club v. City of Cebu, G.R. No.
180235, January 20, 2016)

139 See Cudia v. The Superintendent of the Philippine Military Academy

(PMA), G.R. No. 211362, February 24, 2015, 751 SCRA 469, 542.

140 Also includes the United States Soldiers' and Airmen's National
Cemetery in the District of Columbia.

141 See 32 C.F.R. § 553.3 and 10 U.S.C.A. § 4721.

142 Id.

143 10 U.S.C.A. § 4723.

144 36 C.F.R. § 12.2.

145 Id.

146 Id.

147 See National Electrification Administration v. COA, 427 Phil. 464, 485
(2002).

148 On August 19, 1992, the Government of the Republic of the Philippines,
represented by Department of Interior and Local Government (DILG)
Secretary Rafael M. Alunan III, and the family of the late President Marcos,
represented by his widow, Mrs. Imelda R. Marcos, agreed on the following
conditions and procedures by which the remains of the former President shall
be brought back to and interred in the Philippines:

It is hereby agreed that the remains of former President Ferdinand E. Marcos

shall be allowed to be brought back to the Philippines from Hawaii, USA on 1
September 1992.

II

That the remains shall be brought directly from Hawaii, USA to Laoag, Ilocos
Norte by means of an aircraft which shall fly directly to its port of destination
at Laoag International Airport, Laoag, Ilocos Norte. It shall be understood that
once the aircraft enters the Philippine area of responsibility, stopover for
whatever reason in any airport other than the airport of destination shall be
allowed only upon prior clearance from the Philippine Government.

III

That the family of the late President Marcos undertakes to fix a wake period
of nine (9) days beginning 1 September 1992 to allow friends, relatives and
supporters to pay their courtesy, last respect and homage to the former
President at the Marcos family home at Batac, Ilocos Norte. It shall undertake
further to maintain peaceful and orderly wake and/or help and cooperate
with the local government authorities ensure that the same will not be used
to foment and promote civil disorder.

IV

That the remains shall be buried [temporarily interred] on the 9th of

September 1992 at the family burial grounds at Batac, Ilocos Norte, provided
that any transfer of burial grounds shall be with prior clearance from the
Philippine Government taking into account the prevailing socio-political
climate.

The government shall provide appropriate military honors during the wake
and interment, the details of which shall be arranged and finalized by and
between the parties thereto.

VI

The Government shall ensure that the facilities at Laoag International Airport
will allow for a safe landing as well as processing of incoming passengers,
their cargoes and/or existing laws and regulations.

On August 26, 1992, DILG Secretary Alunan informed Mrs. Marcos of the
government's decision that former President Marcos be accorded honors
befitting a war veteran, and a former member of the AFP which, in general
terms, includes the following: Flag Draped Coffin, Vigil Guards during the
wake, Honor Guard, Firing Detail, Taps, and Pallbearers composed of retired
generals under his command.

On August 25, 1993, Roque R. Ablan Jr. wrote DILG Secretary Alunan,
confirming the previous arrangements between him and Mrs. Marcos, and
also the arrangements made by Ablan before President Fidel V. Ramos on the
following matters:

1. Direct flight of the remains of the late Pres. Marcos from Honolulu to
Laoag.

2. That there will be an interim burial of the late Pres. Marcos in Batac, Ilocos
Norte until such time when President Ramos will feel that the healing period
would have been attain[ed] and that he shall be transferred to Manila for
final burial.

3. That the remains will not be paraded to the other provinces.

4. That [Ablan] discussed this with Mrs. Marcos this morning and that she
had given me full authority to assure the government that everything will be
in accordance with the memo of understanding, and the pronouncement
made by President Ramos that the remains can stay at the Don Mariano
Marcos State University provided no government expenditures will be
incurred and that the place will not be disturbed.

Ablan also informed DILG Secretary Alunan of the following details: (1) the
remains of former President Marcos would arrive in Laoag City, Ilocos Norte
on September 7, 1993; (2) from the airport, the remains would be brought to
the Laoag City Cathedral, and after the mass, it would be brought to the
Capitol for public viewing; (3) on the next day, the remains would be brought
to Batac where it should be placed side by side with the late Dońa Josefa
Edralin Marcos; (4) that on September 9, Dońa Josefa Marcos would be buried
in the cemetery besides Governor Elizabeth Marcos Roca; and (5) on
September 10, the late President Marcos would be buried in the mausoleum.

On September 10, 1993, the coffin of former President Marcos was opened
inside the mausoleum and was subsequently placed inside a transparent
glass for viewing.

149 Book III, Title I, Chapter 4, Section 14 of the Administrative Code.

150 From December 30, 1965 until February 25, 1986 when he and his
immediate family members were forcibly exiled in the USA because of the
EDSA People Power Revolution.

151 He was an Assemblyman (1949 to 1959) and a Senator (1959-1965),

serving as Senate President during his last three (3) years.

152 From December 31, 1965 to January 20, 1967.

153 On November 15, 1941, Marcos was called and inducted to the United
States Armed Forces in the Far East (USAFFE) as Third Lieutenant. From
November 16, 1941 to April 8, 1942, he was assigned as assistant G-2 of the
21st (Lightning) Division of the USAFFE, where he attained the rank of First
Lieutenant. He was then promoted to the rank of Colonel under Special
Orders No. 68 dated September 25, 1962. In Special Orders No. 264 dated
June 11, 1963 and General Orders No. 265 dated May 19, 1964, he remained
listed as Colonel. (See Annex "13" of the Consolidated Comment filed by the
OSG).

154 The PVAO recognized Marcos as a member of the retired army

personnel. Based on a Certification dated August 18, 2016 issued by PVAO's
Records Management Division Chief, respondent Imelda Romualdez Marcos is
receiving P5,000.00 as Old Age Pension, being the surviving spouse of a
retired veteran under R.A. No. 6948, as amended. (See Annex "12" of the
Consolidated Comment filed by the OSG).

155 During his military career, Marcos was awarded a Medal of Valor through
General Orders No. 167 dated October 16, 1968 "for extraordinary gallantry
and intrepidity at the risk of life, above and beyond the call of duty in a
suicidal action against overwhelming enemy forces at the junction of Salian
River and Abo-Abo River, Bataan, on or about 22 January 1942." (See Annex
"14" of Consolidated Comment filed by the OSG).

156 See Yap v. Commission on Audit, 633 Phil. 174, 188 (2010).

157 Resident Marine Mammals of the Protected Seascape Tańon Strait v.

Reyes, G.R. No. 180771 & 181527, December 8, 2015.

158 Almario, et al. v. Executive Secretary, et al., supra note 46, at 166.

159 10 U.S.C.A. § 4722.

160 32 C.F.R. § 553.12

161 The following persons are not eligible for interment, inurnment, or
memorialization in an Army National Military Cemetery:

(a) A father, mother, brother, sister, or in-law solely on the basis of his or her
relationship to a primarily eligible person, even though the individual is:

(1) Dependent on the primarily eligible person for support; or

(2) A member of the primarily eligible person's household.

(b) A person whose last period of service was not characterized as an
honorable discharge (e.g., a separation or discharge under general but
honorable conditions, other than honorable condbiatdions, a conduct
discharge, a dishonorable discharge, or a dismissal), regardless of whether
the person:

(1) Received any other veterans' benefits; or

(2) Was treated at a Department of Veterans Affairs hospital or died in such a

hospital.

(c) A person who has volunteered for service with the U.S. Armed Forces, but
has not yet entered on active duty.

(d) A former spouse whose marriage to the primarily eligible person ended in
divorce.

(e) A spouse who predeceases the primarily eligible person and is interred or
inurned in a location other than Arlington National Cemetery, and the
primarily eligible person remarries.

(f) A divorced spouse of a primarily eligible person.

(g) Otherwise derivatively eligible persons, such as a spouse or minor child, if

the primarily eligible person was not or will not be interred or inurned at
Arlington National Cemetery.

(h) A service member who dies while on active duty, if the first General
Courts Martial Convening Authority in the service member's chain of
command determines that there is clear and convincing evidence that the
service member engaged in conduct that would have resulted in a separation
or discharge not characterized as an honorable discharge (e.g., a separation
or discharge under general but honorable conditions, other than honorable
conditions, a bad conduct discharge, a dishonorable discharge, or a
dismissal) being imposed, but for the death of the service member.

(i) Animal remains. If animal remains are unintentionally commingled with

human remains due to a natural disaster, unforeseen accident, act of war or
terrorism, violent explosion, or similar incident, and such remains cannot be
separated from the remains of an eligible person, then the remains may be
interred or inurned with the eligible person, but the identity of the animal
remains shall not be inscribed or identified on a niche, marker, headstone, or
otherwise. (See 32 C.F.R. § 553.19)
162 (a) Prohibition. Notwithstanding §§ 553.12-553.16, 553.18, and 553.22,
pursuant to 10 U.S.C. 985 and 38 U.S.C. 2411, the interment, inurnment, or
memorialization in an Army National Military Cemetery of any of the
following persons is prohibited:

(1) Any person identified in writing to the Executive Director by the Attorney
General of the United States, prior to his or her interment, inumment, or
memorialization, as a person who has been convicted of a Federal capital
crime and whose conviction is final (other than a person whose sentence was
commuted by the President).

(2) Any person identified in writing to the Executive Director by an

appropriate State official, prior to his or her interment, inurnment, or
memorialization, as a person who has been convicted of a State capital crime
and whose conviction is final (other than a person whose sentence was
commuted by the Governor of the State).

(3) Any person found under procedures specified in § 553.21 to have

committed a Federal or State capital crime but who has not been convicted
of such crime by reason of such person not being available for trial due to
death or flight to avoid prosecution. Notice from officials is not required for
this prohibition to apply.

(4) Any person identified in writing to the Executive Director by the Attorney
General of the United States or by an appropriate State official, prior to his or
her interment, inurnment, or memorialization, as a person who has been
convicted of a Federal or State crime causing the person to be a Tier III sex
offender for purposes of the Sex Offender Registration and Notification Act,
who for such crime is sentenced to a minimum of life imprisonment and
whose conviction is final (other than a person whose sentence was
commuted by the President or the Governor of a State, as the case may be).

(b) Notice. The Executive Director is designated as the Secretary of the

Army's representative authorized to receive from the appropriate Federal or
State officials notification of conviction of capital crimes referred to in this
section.

(c) Confirmation of person's eligibility.

(1) If notice has not been received, but the Executive Director has reason to
believe that the person may have been convicted of a Federal capital crime
or a State capital crime, the Executive Director shall seek written
confirmation from:
(i) The Attorney General of the United States, with respect to a suspected
Federal capital crime; or

(ii) An appropriate State official, with respect to a suspected State capital

crime.

(2) The Executive Director will defer the decision on whether to inter, inurn,
or memorialize a decedent until a written response is received. (See 32
C.F.R. § 553.20)

163 The medal of honor awarded posthumously to a deceased member of

the armed forces who, as an unidentified casualty of a particular war or other
armed conflict, is interred in the Tomb of the Unknowns at Arlington National
Cemetery, Virginia, is awarded to the member as the representative of the
members of the armed forces who died in such war or other armed conflict
and whose remains have not been identified, and not to the individual
personally. (10 U.S.C.A. § 1134)

164 Includes the Secretary of State, Secretary of the Treasury, Secretary of

Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture,
Secretary of Commerce, Secretary of Labor, Secretary of Health and Human
Services, Secretary of Housing and Urban Development, Secretary of
Transportation, United States Trade Representative, Secretary of Energy,
Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland
Security, Director of the Office of Management and Budget, Commissioner of
Social Security, Social Security Administration, Director of National Drug
Control Policy, Chairman and Board of Governors of the Federal Reserve
System, and Director of National Intelligence.

165 Includes the Deputy Secretary of Defense, Deputy Secretary of State,

Deputy Secretary of State for Management and Resources, Administrator of
Agency for International Development, Administrator of the National
Aeronautics and Space Administration, Deputy Secretary of Veterans Affairs,
Deputy Secretary of Homeland Security, Under Secretary of Homeland
Security for Management, Deputy Secretary of the Treasury, Deputy
Secretary of Transportation, Chairman of Nuclear Regulatory Commission,
Chairman of Council of Economic Advisers, Director of the Office of Science
and Technology, Director of the Central Intelligence Agency, Secretary of the
Air Force, Secretary of the Army, Secretary of the Navy, Administrator of
Federal Aviation Administration, Director of the National Science Foundation,
Deputy Attorney General, Deputy Secretary of Energy, Deputy Secretary of
Agriculture, Director of the Office of Personnel Management, Administrator of
Federal Highway Administration, Administrator of the Environmental
Protection Agency, Under Secretary of Defense for Acquisition, Technology,
and Logistics, Deputy Secretary of Labor, Deputy Director of the Office of
Management and Budget, Independent Members of Thrift Depositor
Protection Oversight Board, Deputy Secretary of Health and Human Services,
Deputy Secretary of the Interior, Deputy Secretary of Education, Deputy
Secretary of Housing and Urban Development, Deputy Director for
Management of Office of Management and Budget, Director of the Federal
Housing Finance Agency, Deputy Commissioner of Social Security, Social
Security Administration, Administrator of the Community Development
Financial Institutions Fund, Deputy Director of National Drug Control Policy,
Members and Board of Governors of the Federal Reserve System, Under
Secretary of Transportation for Policy, Chief Executive Officer of Millennium
Challenge Corporation, Principal Deputy Director of National Intelligence,
Director of the National Counterterrorism Center, Director of the National
Counter Proliferation Center, Administrator of the Federal Emergency
Management Agency and Federal Transit Administrator.

166 The following persons are eligible for inurnment in the Arlington National
Cemetery Columbarium, unless otherwise prohibited as provided for in §§
553.19-553.20, provided that the last period of active duty of the service
member or veteran ended with an honorable discharge.

(a) Primarily eligible persons. The following are primarily eligible persons for
purposes of inurnment:

(1) Any person eligible for interment in Arlington National Cemetery, as

provided for in § 553.12(a).

(2) Any veteran who served on active duty other than active duty for
training.

(3) Any member of a Reserve component of the Armed Forces who dies
while:

(i) On active duty for training or performing full-time duty under title 32,
United States Code;

(ii) Performing authorized travel to or from such active duty for training or
full-time duty;

(iii) On authorized inactive-duty training, including training performed as a

member of the Army National Guard of the United States or the Air National
Guard of the United States; or
(iv) Hospitalized or receiving treatment at the expense of the Government for
an injury or disease incurred or contracted while on such active duty for
training or full-time duty, traveling to or from such active duty for training or
full-time duty, or on inactive-duty training.

(4) Any member of the Reserve Officers' Training Corps of the United States,
Army, Navy, or Air Force, whose death occurs while:

(i) Attending an authorized training camp or cruise;

(ii) Performing authorized travel to or from that camp or cruise; or

(iii) Hospitalized or receiving treatment at the expense of the Government for

injury or disease incurred or contracted while attending such camp or cruise
or while traveling to or from such camp or cruise.

(5) Any citizen of the United States who, during any war in which the United
States has been or may hereafter be engaged, served in the armed forces of
any government allied with the United States during that war, whose last
service ended honorably by death or otherwise, and who was a citizen of the
United States at the time of entry into that service and at the time of death.

(6) Commissioned officers, United States Coast and Geodetic Survey (now
National Oceanic and Atmospheric Administration) who die during or
subsequent to the service specified in the following categories and whose
last service terminated honorably:

(i) Assignment to areas of immediate military hazard.

(ii) Served in the Philippine Islands on December 7, 1941.

(iii) Transferred to the Department of the Army or the Department of the

Navy under certain statutes.

(7) Any commissioned officer of the United States Public Health Service who
served on full-time duty on or after July 29, 1945, if the service falls within
the meaning of active duty for training as defined in 38 U.S.C. 101(22) or
inactive duty training as defined in 38 U.S.C. 101(23) and whose death
resulted from a disease or injury incurred or aggravated in line of duty. Also,
any commissioned officer of the Regular or Reserve Corps of the Public
Health Service who performed active service prior to July 29, 1945 in time of
war; on detail for duty with the Armed Forces; or while the service was part
of the military forces of the United States pursuant to Executive order of the
President.
(8) Any Active Duty Designee as defined in this part.

(b) Derivatively eligible persons. Those connected to an individual described

in paragraph (a) of this section through a relationship described in §
553.12(b). Such individuals may be inurned if space is available in the
primarily eligible person's niche. (32 C.F.R. § 553.13).

167 (a) The cremated remains of any person eligible for interment in
Arlington National Cemetery as described in § 553.12 may be interred in the
designated Arlington National Cemetery Unmarked Area.

(b) Cremated remains must be interred in a biodegradable container or

placed directly into the ground without a container. Cremated remains are
not authorized to be scattered at this site or at any location within Arlington
National Cemetery.

(c) There will be no headstone or marker for any person choosing this
method of interment. A permanent register will be maintained by the
Executive Director.

(d) Consistent with the one-gravesite-per-family policy, once a person is

interred in the Unmarked Area, any derivatively eligible persons and spouses
must be interred in this manner. This includes spouses who are also primarily
eligible persons. No additional gravesite, niche, or memorial marker in a
memorial area will be authorized. (32 C.F.R. § 553.14).

168 (a) The Executive Director may authorize a group burial in Arlington
National Cemetery whenever several people, at least one of whom is an
active duty service member, die during a military-related activity and not all
remains can be individually identified.

(b) Before authorizing a group burial that includes both United States and
foreign decedents, the Executive Director will notify the Department of State
and request that the Department of State notify the appropriate foreign
embassy. (32 C.F.R. § 553.15).

169 32 C.F.R. § 553.22(a).

170 Id.

171 Approved on March 22, 2001 and published in national newspapers of

general circulation on April 9, 2001 as well as in the Official Gazette on July
9, 2001. It repealed P.O. No. 1687 dated March 24, 1980.

172 Sec. 1 of R.A. No. 9049.

173 Id.

174 In the event of the awardee's death, the gratuity shall accrue in equal
shares and with the right of accretion to the surviving spouse until she
remarries and to the children, legitimate, or adopted or illegitimate, until
they reach the age of eighteen (18) or until they marry, whichever comes
earlier.

175 Sec. 1 of R.A. No. 6948.

176 Amended by R.A. Nos. 7696, 9396, and 9499.

177 A veteran refers to "any person who: (1) rendered military service in the
land, sea or air forces of the Philippines during the revolution against Spain,
the Philippine-American War, and World War II, including Filipino citizens who
served with the Allied Forces in Philippine territory; (2) was a member of the
Philippine Expeditionary Forces sent to the Korean War and the Philippine
Civic Action Group sent to the Vietnam War; (3) rendered military service in
the Armed Forces of the Philippines (AFP) and has been honorably discharged
or retired after at least twenty (20) years total cumulative active service or
sooner separated while in the active service in the AFP due to death or
disability arising from a wound or injury received or sickness or disease
incurred in line of duty." (Sec. 2 [a] of R.A. No. 6948, as amended by R.A. No.
9396).

178 Sec. 25 of R.A. No. 6948.

179 Section 14, Article III.

180 (a) Preliminary inquiry. If the Executive Director has reason to believe
that a decedent may have committed a Federal capital crime or a State
capital crime but has not been convicted of such crime by reason of such
person not being available for trial due to death or flight to avoid
prosecution, the Executive Director shall submit the issue to the Army
General Counsel. The Army General Counsel or his or her designee shall
initiate a preliminary inquiry seeking information from Federal, State, or local
law enforcement officials, or other sources of potentially relevant
information.

(b) Decision after preliminary inquiry. If, after conducting the preliminary
inquiry described in paragraph (a) of this section, the Army General Counsel
or designee determines that credible evidence exists suggesting the
decedent may have committed a Federal capital crime or State capital crime,
then further proceedings under this section are warranted to determine
whether the decedent committed such crime. Consequently the Army
General Counsel or his or her designee shall present the personal
representative with a written notification of such preliminary determination
and a dated, written notice of the personal representative's procedural
options.

(c) Notice and procedural options. The notice of procedural options shall
indicate that, within fifteen days, the personal representative may:

(1) Request a hearing;

(2) Withdraw the request for interment, inurnment, or memorialization; or

(3) Do nothing, in which case the request for interment, inurnment, or

memorialization will be considered to have been withdrawn.

(d) Time computation. The fifteen-day time period begins on the calendar
day immediately following the earlier of the day the notice of procedural
options is delivered in person to the personal representative or is sent by
U.S. registered mail or, if available, by electronic means to the personal
representative. It ends at midnight on the fifteenth day. The period includes
weekends and holidays.

(e) Hearing. The purpose of the hearing is to allow the personal

representative to present additional information regarding whether the
decedent committed a Federal capital crime or a State capital crime. In lieu
of making a personal appearance at the hearing, the personal representative
may submit relevant documents for consideration.

(1) If a hearing is requested, the Army General Counsel or his or her

designee shall conduct the hearing.

(2) The hearing shall be conducted in an informal manner.

(3) The rules of evidence shall not apply.

(4) The personal representative and witnesses may appear, at no expense to

the Government, and shall, in the discretion of the Army General Counsel or
his or her designee, testify under oath. Oaths must be administered by a
person who possesses the legal authority to administer oaths.

(5) The Army General Counsel or designee shall consider any and all relevant
information obtained.

(6) The hearing shall be appropriately recorded. Upon request, a copy of the
record shall be provided to the personal representative.
(f) Final determination. After considering the opinion of the Army General
Counsel or his or her designee, and any additional information submitted by
the personal representative, the Secretary of the Army or his or her designee
shall determine the decedent's eligibility for interment, inurnment, or
memorialization. This determination is final and not appealable.

(1) The determination shall be based on evidence that supports or

undermines a conclusion that the decedent's actions satisfied the elements
of the crime as established by the law of the jurisdiction in which the
decedent would have been prosecuted.

(2) If an affirmative defense is offered by the decedent's personal

representative, a determination as to whether the defense was met shall be
made according to the law of the jurisdiction in which the decedent would
have been prosecuted.

(3) Mitigating evidence shall not be considered.

(4) The opinion of the local, State, or Federal prosecutor as to whether he or

she would have brought charges against the decedent had the decedent
been available is relevant but not binding and shall be given no more weight
than other facts presented.

(g) Notice of decision. The Executive Director shall provide written

notification of the Secretary's decision to the personal representative. (See
32 C.F.R. § 553.21; Effective: October 26, 2016 ).

181 The requirements for a valid and reasonable classification are: (1) it
must rest on substantial distinctions; (2) it must be germane to the purpose
of the law; (3) it must not be limited to existing conditions only; and (4) it
must apply equally to all members of the same class. (Ferrer. Jr. v. Bautista,
G.R. No. 210551, June 30, 2015, 760 SCRA 652, 709-710).

182 Commonwealth Act No. 408 dated September 14, 1938, as amended.

183 ARTICLE 94. Various Crimes. - Any person subjected to military law who
commits any crime, breach of law or violation of municipal ordinance, which
is recognized as an offense of a penal nature and is punishable under the
penal laws of the Philippines or under municipal ordinances, on a Philippine
Army reservation, shall be punished as a court-martial may
direct; Provided, That in time of peace, officers and enlisted men of the
Philippine Constabulary shall not be triable by courts-martial for any felony,
crime, breach of law or violation of municipal ordinances committed under
this Article.
ARTICLE 95. Frauds Against the Government Affecting Matters and
Equipments. - Any person subject to military law who, having charge,
possession, custody, or control of any money or other property of the
Commonwealth of the Philippines, furnished or intended for the military
service thereof, knowingly delivers, or causes to be delivered, to any person
having authority to receive the same, any amount thereof less than that for
which he receives a certificate or receipt; or

Who, being authorized to make or deliver any paper certifying the receipt of
any property of the Commonwealth of the Philippines furnished or intended
for the military service thereof, makes or delivers to any person such writing,
without having full knowledge of the truth of the statements therein
contained and with intent to defraud the Philippines; or

Who steals, embezzles, knowingly and willfully misappropriates, applies to

his own use or benefit, or wrongfully or knowingly sells or disposes of any
ordnance, arms, equipments, ammunition, clothing, subsistence stores,
money, or other property of the Commonwealth of the Philippines furnished
or intended for the military service thereof; or

Who knowingly purchases or receives in pledge for any obligation or

indebtedness from any soldier, officer, or other person who is a part of or
employed in said forces or service, any ordnance, arms, equipment,
ammunition, clothing subsistence stores, or other property of the
Commonwealth of the Philippines, such soldier, officer, or other person not
having lawful right to sell or pledge the same;

Shall, on conviction thereof, be punished by fine or imprisonment, or by such

other punishment as a court-martial may adjudge, or by any or all of said
penalties. And if any person, being guilty of any of the offenses aforesaid
while in the military service of the Philippines, received his discharge or is
dismissed from the service, he shall continue to be liable to be arrested and
held for trial and sentence by a court-martial in the same manner and to the
same extent as if he had not received such discharge nor been dismissed.
And if any officer, being guilty, while in the military service of the Philippines
of embezzlement of ration savings, post exchange, company, or other like
funds, or of embezzlement of money or other property entrusted to his
charge by an enlisted man or men, receives his discharge, or is dismissed, or
is dropped from the rolls, he shall continue to be liable to be arrested and
held for trial and sentence by a court-martial in the same manner and to the
same extent as if he had not been so discharged, dismissed, or dropped from
the rolls.
ARTICLE 97. General Article. - Though not mentioned in these articles, all
disorders and neglects to the prejudice of good order and military discipline
and all conduct of a nature to bring discredit upon the military service shall
be taken cognizance of by a general or special or summary court-martial
according to the nature and degree of the offense, and punished at the
discretion of such court. (Commonwealth Act No. 408 dated September 14,
1938, as amended by P.D. 1166 dated June 24, 1977)

Article 94 is under the jurisdiction of civil courts while Articles 95 to 97, as

service-connected crimes or offenses, are under the jurisdiction of the court-
martial (See R.A. No. 7055, Approved on June 20, 1991)

184 On July 12, 2016, the NHCP published its study, entitled "Why Ferdinand
E. Marcos Should Not Be Buried At The Libingan Ng Mga Bayani," concluding
that Marcos' military record is fraught with myths, factual inconsistencies,
and lies. The NHCP study demonstrated that: (I) Marcos lied about receiving
U.S. Medals (Distinguished Service Cross, Silver Star, and Order of Purple
Heart); (2) his guerilla unit, the Ang Mga Maharlika, was never officially
recognized and neither was his leadership of it; (3) U.S. officials did not
recognize Marcos' rank promotion from Major in 1944 to Lt. Col. by 1947; and
(4) some of Marcos' actions as a soldier were officially called into question by
the upper echelons of the U.S. Military, such as his command of the Alias
Intelligence Unit (described as "usurpation"), his commissioning of officers
(without authority), his abandonment of USAFIP-NL presumably to build in
airfield for Gen. Roxas, his collection of money for the airfield (described as
"illegal"), and his listing of his name on the roster of different units (called a
"malicious criminal act").

185 Emphasis supplied.

186 Almario, et al. v. Executive Secretary, et al., supra note 46, at 163.

187 Vol. IV Record, September 19, 1986, pp. 829-831; See also Bernas,
Joaquin G., S.J., The Intent of the 1986 Constitution Writers. 1995. pp. 116-
117.

[ G.R. No. 217910, September 03, 2019 ]

JESUS NICARDO M. FALCIS, III, PETITIONER, V. CIVIL REGISTRAR

GENERAL, RESPONDENT.

LGBTS CHRISTIAN CHURCH, INC., REVEREND CRESENCIO "CEEJAY"

AGBAYANI, JR., MARLON FELIPE, AND MARIA ARLYN "SUGAR" IBAÑEZ,
PETITIONERS-IN-INTERVENTION.
ATTY. FERNANDO P. PERITO, ATTY. RONALDO T. REYES, ATTY. JEREMY
I. GATDULA, ATTY. CRISTINA A. MONTES, AND ATTY. RUFINO
POLICARPIO III, INTERVENORS-OPPOSITORS.

CONCURRING OPINION

JARDELEZA, J.:

Justice Scalia: "I'm curious... when did it become unconstitutional to exclude

homosexual couples from marriage? Seventeen ninety-one? Eighteen sixty-
eight, when the Fourteen Amendment was adopted? x x x"

Ted: "When - may I answer this in the form of a rhetorical question? When did
it become unconstitutional to prohibit interracial marriages? When did it
become unconstitutional to assign children to separate schools?" x x x Courts
decide there are constitutional rights when they have before them a case
that presents the issue, and when they know — and society knows - enough
about the issue to make informed decisions.1

I vote to DISMISS the petition, not the idea of marriage equality.

Petitioner Jesus Nicardo M. Falcis III (petitioner) is not the proper party to
assert a liberty interest in same-sex marriage. He did not suffer any injury as
a result of the enforcement of Articles 1 and 2 of Executive Order (EO) No.
209, otherwise known as "The Family Code of the Philippines" (Family Code).
The subsequent intervention by Reverend Crescendo "Ceejay" Agbayani, Jr.
(Rev. Ceejay), Marlon Felipe (Marlon) of LGTBS Christian Church (LGTBS
Church), and Maria Arlyn "Sugar" Ibañez (Sugar),2 (collectively, the two
couples), did not cure this defect in the petition.

I also find dismissal to be proper because direct recourse to the Court in this
case is unwarranted. Petitioner asserts that he raises legal questions,
principally that Articles 1 and 2 of the Family Code violate his fundamental
right to enter into a same-sex marriage. This, however, cannot be farther
from the truth. The issues he raises implicate underlying questions of fact
which, in turn, condition the constitutionality of the legal provisions he
questions.3 In his exuberant rush to bring this case directly to the Court as
both lead party and counsel, petitioner chose to skip building a factual
foundation of record upon which the Court can make an informed judgment.
The underlying questions of fact that underpin his legal argument include
whether: (a) couples of the same-sex can satisfy the essential requirements
of marriage equally as heterosexual couples; (b) procreation is an essential
requirement of marriage; (c) couples of the same-sex can raise children
equally as well as heterosexual couples; (d) Filipino tradition accepts same-
sex marriage; and (e) the LGBTS Church is a religion whose members,
including the two couples, hold a sincere belief in same-sex marriage as a
central tenet of their faith.

The petition presents no actual case or controversy.

There is an actual case or controversy when the case is appropriate or ripe

for determination, not conjectural or anticipatory, lest the decision of the
court would amount to an advisory opinion.4 This means that there must be
a conflict of legal rights or an assertion of opposite legal claims which can be
resolved on the basis of existing law and jurisprudence. An abstract dispute,
in stark contrast, only seeks for an opinion that advises what the law would
be on hypothetical state of facts.5 Furthermore, a case is ripe for
adjudication when the act being challenged has had a direct adverse effect
on the individual challenging it. Something must have been accomplished or
performed by either branch of Government before a court may come into the
picture, and a petitioner must allege the existence of an immediate or
threatened injury to him/her as a result of the challenged action.6

On its face, it presents a hypothetical and contingent event, not ripe for
adjudication, which is hinged on petitioner's future plan of settling down with
a person of the same-sex.

Petitioner alleged that "the prohibition against the right to marry the same-
sex injures [his] plans to settle down and have a companion for life in his
beloved country."7 Yet as of the filing of the petition, petitioner has no
partner. He lamented that his "ability to find and enter into a long-term
monogamous same-sex relationship is impaired because of the absence of a
legal incentive for gay individuals to seek such relationship."8 Significantly,
however, even if he has a partner, petitioner admitted in open court that it is
not automatic that his partner might want to marry him.9 Thus, petitioner
cannot, did not or even attempted to, file an application for marriage license
before the civil registry of his residence.

Consequently, the Civil Registrar General (CRG) or any other official in any of
the branches of the government has nothing to act upon. They could not and
have not performed an act which injured or would injure petitioner's asserted
right. It is clear that petitioner's cause of action does not exist.
B

Petitioner has no legal standing to file the suit.

Standing or locus standi is defined as the right of appearance in a court of

justice on a given question.10 To determine whether a party has standing,
the direct injury test is applied.11 Under this test, the person who impugns
the validity of a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its
enforcement.12

Despite this, however, there have been cases wherein the Court has allowed
the following non-traditional suitors to bring a case before it despite lack of
direct injury:

1. For taxpayers, there must be a claim of illegal disbursement of public

funds or that the tax measure is unconstitutional;

2. For voters, there must be a showing of obvious interest in the validity of

the election law in question;

3. For concerned citizens, there must be a showing that the issues raised are
of transcendental importance which must be settled early;

4. For legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators;13

5. For associations, its members must be affected by the action;14 and

6. For those bringing suit on behalf of third parties, the litigant must have
suffered an 'injury-in-fact,' thus giving him or her a "sufficiently concrete
interest" in the outcome of the issue in dispute; the litigant must have a
close relation to the third party; and there must exist some hindrance to the
third party's ability to protect his or her own interests.15

In this case, petitioner is not in a long-term monogamous same-sex

relationship. He has not attempted to marry nor was prevented by the State
from doing so. This makes his lack of direct interest in the enforcement of the
assailed provisions of the Family Code patent.

Neither does petitioner qualify as a taxpayer as he has not alleged illegal

disbursement of public funds or that a tax measure is involved in this case.
He does not assail the validity of an election law, so he also does not have
standing as a voter. Finally, he is not a legislator nor an association and
therefore cannot claim standing as such.
C

The petition-in-intervention cannot cure the defects of the petition.

An intervention is merely ancillary and supplemental to an existing litigation.

It is not an independent action. It presupposes the pendency of a suit in a
court of competent jurisdiction; in other words, jurisdiction over the same is
governed by jurisdiction over the main action. Perforce, a court which has no
jurisdiction over the principal action has no jurisdiction over a complaint-in-
intervention.16

As stated earlier, the petition before Us lacks the essential requisites for
judicial review. This ousts the Court of jurisdiction to take cognizance of the
same. More, jurisprudence instructs that a petition-in-intervention cannot
create an actual controversy for the main petition. The cause of action must
be made out by the allegations of the petition without the aid of any other
pleading.17

In any event, the petition-in-intervention is, in itself, wanting and cannot lend
any validity to the main petition. The LGBTS Church, while claiming to
intervene on behalf of its members, failed to satisfy the following
requirements to successfully maintain third-party standing: (1) the litigant
must have suffered an 'injury-in-fact,' thus giving him/her a "sufficiently
concrete interest" in the outcome of the case in dispute; (2) the litigant must
have a close relation to the third party; and (3) there must be some
hindrance to the third party's ability to protect his/her own interests.18 The
first and third elements are missing. As will be discussed in detail later, the
LGBTS Church failed to show how the challenged law injures it and its
members. On the other hand, the filing of the petition-in-intervention by the
two couples, who are members of the LGBTS Church, proved that they are
sufficiently capable to acting to protect their own interest. Any invocation of
third party-standing is thus misplaced.

Neither can the transcendental importance doctrine save the petition and
the petition-in-intervention. This doctrine dispenses only with the
requirement of locus standi. It does not override the requirements of actual
and justiciable controversy, a condition sine qua non for the exercise of
judicial power.19

Very recently in Gios-Samar, Inc. v. Department of Transportation and

Communications,20 the Court held that mere invocation of the
transcendental importance doctrine cannot, absent a showing that the issue
raised is one of law, excuse a violation of the rule on hierarchy of courts.
Hence, when a question before the Court involves the determination of
factual issues indispensable to the resolution of a legal issue, the Court will
refuse to resolve the factual question regardless of the invocation of the
transcendental or paramount importance of the case.21

II

As stated at the outset, the petition and the petition-in-intervention raise

issues which the Court cannot resolve in the absence of a factual foundation
of record. Their decision to bring the case directly before the Court is
unwarranted and constitutes ground for the outright dismissal of the petition.

While the Court has original and concurrent jurisdiction with the Regional
Trial Court (RTC) and the Court of Appeals (CA) over petitions seeking the
issuance of writs of certiorari and prohibition, litigants do not have unfettered
discretion to invoke the Court's original jurisdiction. The doctrine of hierarchy
of courts dictates that direct recourse to this Court is allowed only to resolve
questions of law.22

I note that petitioner did couch his petition and the petition-in-intervention in
a manner as to purport to present a pure legal question, that is, whether
Articles 1 and 2 of the Family Code are constitutional. He argued that the
assailed provisions are unconstitutional because they violate his (and other
homosexuals'): (1) due process right/liberty to marry a person of the same-
sex;23 (2) right to equal protection of the laws;24 and (3) right to found a
family within a marriage in accord with their religious convictions under
Section 3(1), Article VX of the Constitution.25 Before this Court can reach the
issue of constitutionality, however, it first needs to determine whether
petitioner's asserted liberty interest exists. The query at the outset is,
therefore, is: "Did petitioner lose something that fits into one of the three
protected categories of life, liberty, or property?"26 "If in the affirmative, the
next question to ask is: "Is it a fundamental right protected by the
Constitution?"

I had occasion to express my views on the concept of fundamental rights

under constitutional law in my Concurring and Dissenting Opinion in Versoza
v. People of the Philippines, et al.27 decided today. They bear some
repetition here.

A
The concept of fundamental rights, once described as "liberties that operate
as trumps,"28 was first extensively covered by the Court, through Chief
Justice Puno, in Central Bank Employees Association, Inc. v. Bangko Sentral
ng Pilipinas.29 There, the Court, citing Gerald Gunther, traced its history and
development in the context of American constitutional equal protection
analysis.30

The recognition of an asserted liberty interest as "fundamental" has

significant legal consequences. Traditionally, liberty interests are protected
only against arbitrary government interference. If the government can show
a rational basis for believing that its interference advances a legitimate
legislative objective, a claim to a liberty interest may fail.31 Where, however,
a liberty interest has been accorded an "elevated" status - that is, by
characterizing it as a right (or a fundamental right), then the government is
subject to a higher burden of proof to justify intrusions into these interests,
namely, the requirements of strict scrutiny in equal protection cases32 and
that of compelling state interest in due process cases.33 As the United
States Supreme Court (US Supreme Court) has warned, affixing the label
"fundamental" to such liberty interests would place them outside the arena
of public debate and legislative action.34 Resultantly, and as is also true in
this jurisdiction, fundamental rights have been deemed to include only those
basic liberties explicitly or implicitly guaranteed by the Bill of Rights of the
Constitution.35

There seems to me little disagreement as to the "fundamental" nature of an

asserted liberty interest when the same can be read from the text of the Bill
of Rights of the Constitution itself. Thus, when a state act is alleged to have
implicated an explicit "fundamental right," i.e., a right textually found in the
Bill of Rights, the Court has been wont to subject the government to
a higher burden to justify its challenged action: This the Court did
in Ebralinag v. The Division Superintendent of Schools of Cebu,36 (on
religious beliefs); Legaspi v. Civil Service Commission,37 (on the right of the
people to information on matters of public concern); Disini, Jr. v. Secretary of
Justice,38 (on the right to freedom of expression, right to privacy, and right
against unreasonable searches and seizures); Samahan ng mga Progresibong
Kabataan (SPARK) v. Quezon City,39 (on the right to travel); Chavez v.
Gonzales,40 (on the freedom of the press); Newsounds Broadcasting
Network, Inc. v. Dy,41 (on the right to free speech and freedom of the press);
and Kabataan Party-List v. Commission on Elections,42 (on the right to vote).
C

How should the Court proceed if the right asserted to be fundamental is not
explicitly found in the Bill of Rights or other provisions of the Constitution, or
where the fundamental right is asserted to flow from generally-stated rights
such as due process and equal protection? Justice Harlan of the US Supreme
Court has famously noted that "the full scope of the liberty guaranteed by
the Due Process Clause cannot be found in, or limited by, the precise terms
of the specific guarantees elsewhere provided in the Constitution." 43

In this jurisdiction, this Court has had occasion to rule on assertions

of unenumerated fundamental rights:

In the 1924 case of People v. Pomar,44 and reminiscent of the Lochner-era

rulings, this Court declared unconstitutional provisions of law which required
employers to pay a woman employee, who may become pregnant, her
wages for 30 days before and 30 days after confinement. Citing a long line of
US Supreme Court Lochner-era decisions, this Court found that the right to
liberty includes the right to enter into (and terminate) contracts.45

Philippine adherence to this ruling would, however, be short-lived.46 As

Justice Fernando would later explain in Edu v. Ericta,47 the decision
in Pomar was largely brought about by the fact that "our Supreme Court had
no other choice as the Philippines was then under the United States," where
only a year before Pomar, a statute providing for minimum wages was
declared in Adkins to be constitutionally infirm. The Court (and the
Constitutional Convention) would adopt a more deferential attitude towards
government regulation of economic relations and covering such subjects as
"collective bargaining, security of tenure, minimum wages, compulsory
arbitration, the regulation of tenancy as well as the issuance of securities,
and control of public services."48

In the meantime, and taking its cue from the US Supreme Court, this Court
would also go on to recognize unenumerated, yet fundamental, non-
economic rights. For example, although the Bill of Rights speaks only of a
right of privacy over communication and correspondence, the Court, in the
1968 case of Morfe v. Mutuc,49 adopted the reasoning in Griswold and
recognized a constitutional right to personal privacy. In Oposa v. Factoran,
Jr.,50 this Court accorded fundamental right status to an asserted liberty
interest in "a balanced and healthful ecology" under Section 16, Article II of
the 1987 Constitution. In Imbong v. Ochoa, Jr.51 which involved a number of
challenges against the constitutionality of Republic Act No. 10354,52 this
Court recognized the constitutional right of parents to exercise parental
control over their minor-child and a liberty interest in the access to safe and
non-abortifacient contraceptives hinged on a right to health under Section
15, Article II53 and other sections of the Constitution. In Capin-Cadiz v. Brent
Hospital and Colleges, Inc.,54 the Court held that the constitutional right to
personal liberty and privacy should be read to include a woman's right to
choose whether to marry and to decide whether she will bear and rear her
child outside of marriage.55

Most recently, this Court in Republic v. Manalo,56 applying equal protection

analysis, upheld, pursuant to a fundamental right to marry, a liberty interest
on the part of a Filipino spouse to be recapacitated to marry, in cases where
a valid foreign divorce has been obtained.

III

Unlike the case of rights that can be located on the text of the Bill of Rights,
the rules with respect to locating unenumerated "fundamental" rights,
however, are not clear. According to Justice Harlan, speaking in the context
of identifying the full scope of liberty protected under the Due Process
Clause, the endeavor essentially entails an attempt at finding a balance
between "respect for the liberty of the individual x x x and the demands of
organized society."57

The question that presents itself then is how one determines whether an
implied liberty interest being asserted is "fundamental," as to call for the
application of strict scrutiny. For its part, the US Supreme Court has
attempted, over time, to craft principled formulations on how to identify such
"unenumerated" or "implied" rights:

x x x [T]he Court has used a wide variety of methods, ranging from the
restrained approach of locating protected interests in the constitutional text
to the generous test of evaluating interests by the importance they have for
contemporary individuals. Because the Justices do not uniformly agree upon
these methods, it is also understandable that opinions for the Court rarely
express consensus about the way the methods are chosen, or whether they
fit into the hierarchy, or whether some methods are preferable in some
situations and others in other situations. x x x

These methods lie along a continuum, all the way from hair-trigger formulas
that can support a cornucopia of fundamental rights to stingy theories that
protect virtually nothing that is not undeniably enumerated, xxx [n]o one
method is comprehensive or exclusive, and indeed, the Justices themselves
often have used two or three different theories in combination while
analyzing a single interest. x x x58 (Citations omitted.)

This Court has not laid down clear guidelines on this matter. Thus, reference
to American scholarly commentary is again instructive.

In his article An Excess of Methods: Identifying Implied Fundamental Rights in

the Supreme Court, Robert Farrell wrote that the US Supreme Court uses "a
multiplicity of methods of identifying implied fundamental rights."59 After a
survey of US Supreme Court cases, Farrell has classified the different
methods used by the Court in categorizing certain rights as fundamental.
These are either because the asserted rights: (1) are important;60 (2) are
implicit in the concept of ordered liberty61 or implicitly guaranteed by the
Constitution;62 (3) are deeply rooted in the Nation's history and
tradition;63 (4) need protection from government action that shocks the
conscience;64 (5) are necessarily implied from the structure of
government65 or from the structure of the Constitution;66 (6) provide
necessary access to government processes;67 and (7) are identified in
previous Supreme Court precedents.68

There is no one mode of constitutional interpretation that has been

recognized as appropriate under all circumstances. In fact, one would find
critiques for every approach in scholarly commentaries on the
subject.69 Nevertheless, and despite the particular shortcomings of each
individual approach, it is my view that the Court should endeavor to be
deliberate and open about its choice of approach in fundamental rights
cases. This, to my mind, would help greatly not only in furthering the public's
understanding of the Court's decisions in complex constitutional cases; it
would reinforce the credibility of Our decisions, by exacting upon the Court
and its members the duty to clearly and consistently articulate the bases of
its decisions in difficult constitutional cases.

The method by which the US Supreme Court determined the existence of the
fundamental right to same-sex marriage in Obergefell v.
Hodges70 (Obergefell) is instructive.

There, the US Supreme Court considered not only the ancient history of
marriage but also its development through time. To quote Justice Kennedy:
"The history of marriage is one of both continuity and change."71 The US
Supreme Court also noted the legal and societal progression of the rights of
homosexuals from being condemned as immoral to being accorded
protection under the law, as depicted in the case of Lawrence v. Texas.72 It
must be stressed, however, that the US Supreme Court did not receive and
evaluate evidence on these matters for the first time on appeal. The
plaintiffs in Obergefell did not file a suit directly to the US Supreme Court.

Courts which conducted trials and hearings. ℒαwρhi ৷ Thus, the facts upon
Rather, they instituted original actions before their respective Federal District

which the US Supreme Court based its decision were already a matter of
record.

In DeBoer v. Synder (DeBoer),73 one of the cases that comprised Obergefell,

plaintiffs April DeBoer and Jayne Rowse challenged the validity of the
Michigan Marriage Amendment (MMA) which prohibited same-sex marriage
on the ground of violation of the due process and equal protection clauses of
the Fourteenth Amendment. They claimed that they and their children were
injured by their ineligibility to petition for joint adoption because the State of
Michigan permits only a single person or, if married, couples of opposite-sex,
to adopt.74 Thus, they argue that each of their three children can have only
one of them as his/her legal parent. In case tragedy were to befall either
DeBoer or Rowse, the other would have no legal rights over their children.75

The District Court assumed that the appropriate level of scrutiny is rational
basis test; hence, it framed the issue as whether the MMA proscribed a
conduct in a manner that is rationally-related to any conceivable legitimate
governmental purpose.76 It then declared that whether the rationales for the
Michigan laws furthered a legitimate state interest is a "triable issue of fact"
and held a nine-day trial on the issue.77 The State of Michigan offered the
following reasons for excluding same-sex couples from marriage: (1) to
provide children with "biologically-connected" role-models of both genders
that are necessary to foster healthy psychological development; (2) to avoid
the unintended consequences that might result from redefining marriage; (3)
to uphold tradition and morality; and (4) to promote the transition of
"naturally procreative relationships into stable unions."78

Both parties presented expert witnesses (which included psychologists,

sociologists, law professors, and historians) to prove their respective
arguments. The psychologist testified with respect to the relation/non-
relation of the quality of a person's child-rearing skills to his/her sexual
orientation. The sociologist testified about the stability of same-sex couples
and the progress of the children they raised as compared to children raised
by heterosexual married couples. The law professor spoke about the effect of
the MMA to children raised by same-sex couples if the sole legal parent dies
or is incapacitated. The historian narrated the history and bases of civil
marriages not only in Michigan but in every state in the country.79

Meanwhile, similar to Deboer and also instructive here, is Perry v.

Schwarzenegger,80 which involved two same-sex couples who challenged
the validity of "Proposition 8," a voter-enacted amendment to the California
Constitution restricting marriage to one between a man and a woman.
Perry, et al. alleged that they were denied marriage licenses by their
respective county authorities on the basis of Proposition 8, which, in turn,
deprived them of their rights to due process and equal protection of the
laws.81 Specifically, they asserted that the freedom to marry the person of
one's choice is a fundamental right protected by the due process clause.
Proposition 8 should thus be subjected to a heightened scrutiny under the
equal protection clause because gays and lesbians constitute a suspect
class, singled out for unequal treatment and discriminated based on sexual
orientation.82

Since the factual premises underlying Perry, et al.'s claim were disputed, the
US District Court for the Northern District of California (California District
Court) set the matter for trial. The action was tried for more than two weeks
(or from January 11 to 27, 2010).83 The California District Court determined
the following issues: (1) whether any evidence supports California's refusal to
recognize marriage between two people of the (same) sex; (2) whether any
evidence shows California has an interest in differentiating between same-
sex and opposite-sex unions; and (3) whether the evidence shows
Proposition 8 enacted a private moral view without advancing a legitimate
government interest. The parties were given full opportunity to present
evidence in support of their positions and engaged in significant discovery
procedures, including third-party discovery, to build an evidentiary record.84

Perry, et al. presented nine expert witnesses, which include historians,

economists, psychologists, political scientists, and a social epidemiologist,
who, inter alia, testified that there is no meaningful difference between
same-sex couples and opposite-sex couples.85 Proposition 8 proponents, for
their part, presented only two expert witnesses. In the end, the California
District Court found that Proposition 8 proponents "failed to build a credible
factual record to support their claim that [the law] served a legitimate
government interest."86 It thereafter proceeded to declare Proposition 8
unconstitutional because the evidence shows, among others, that it does
nothing more than to enshrine in the Constitution the notion that opposite-
sex couples are superior to same-sex couples.87
B

In this case, petitioner and petitioners-in-intervention, as professed

homosexuals, gays and lesbians, assert a fundamental right to enter into
same-sex marriage.88 They argue that the legal requirement that marriage
be a union between a male and a female violates their rights to due
process89 and the equal protection of the laws.90 On the former, they claim
that there is no rational nexus between limiting marriage to opposite-sex
couples and the state interest of protecting marriage as the foundation of the
family.91 They assert that: homosexuals can fulfill the essential marital
obligations, heterosexuals are no better parents than homosexuals, and
homosexuals can raise children well in the same manner that heterosexuals
can.92 With respect to their equal protection claim, petitioner asserts that
classification on the basis of sexual orientation is suspect,93 because, among
others, sexual orientation is an immutable trait. Since the classification is
suspect, strict scrutiny review must be resorted to. Petitioner further argues
that even applying the rationality test, no substantial distinction can be
made between same-sex and opposite-sex couples, because gay couples can
do everything that opposite-sex couples are required to do by the Family
Code, even if they cannot by themselves procreate.94

To my mind, however, these conflated claims to violations of due process and

equal rights are uniformly anchored on assertions that present triable
questions of fact, the resolution of which needs the reception of evidence.
These questions, among others, include: (a) whether homosexuals, gays and
lesbians can fulfill the essential marital obligations; (b) whether or how
procreation is an essential marital obligation; (c) whether homosexuals, gays
and lesbians can raise children in a manner as well as heterosexuals can; (d)
whether Filipino tradition can accommodate/accept same-sex marriage; and
(e) whether homosexuals are, and should be, treated as a separate class.

With particular reference to equal protection, petitioner maintains that

classifying individuals by sexual orientation and gender, so as to distinguish
between same-sex and opposite-sex couples, is a suspect classification, thus
triggering strict scrutiny.95 He is reminded, however, that in Ang Ladlad
LGBT Party v. Commission on Elections,96 We withheld ruling, in the absence
of sufficient evidence, on whether homosexuals should be treated as a
separate class, viz.:

x x x We disagree with the OSG's position that homosexuals are a class in

themselves for the purposes of the equal protection clause. We are not
prepared to single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence to this
effect, and it is simply unnecessary to make such a ruling today. x x
x97 (Emphasis supplied; citations omitted.)

Petitioner's reference to Chief Justice Puno's Separate Concurring Opinion

in Ang Ladlad98 does not help his cause. In fact, it only underscores the need
for the reception of evidence, before homosexuals, gays and lesbians can be
considered a suspect classification with respect to marriage rights.
Particularly, evidence need to be received on: (a) whether there is a history
of invidious discrimination against the class; (b) whether the distinguishing
characteristic of the class indicate a typical class member's ability to
contribute to society; (c) whether the distinguishing characteristic is
immutable; and (d) the political power of the subject class.99

Petitioner alleges that even if only the rational basis test is applied, the
assailed provisions will fail since there is no substantial distinction between
opposite-sex couples and same-sex couples respecting marriage. Both can
perform the essential marital obligations under the Family Code. These are:
(a) the obligation to live together, observe mutual love, respect, and fidelity,
and render mutual help and support; (b) fix the family domicile; and (c)
support the family and pay the expenses for such support and other conjugal
obligations.100 To reiterate, this argument still requires the presentation of
documentary and testimonial evidence. It cannot be assumed especially
since there are conflicting claims on these assertions.101

With respect to petitioner's claim that same-sex couples can raise children as
well as opposite-sex couples,102 We note that the intervenors-oppositors
expressed a strong contrary view and argue that children raised by
heterosexual couples fare better than those who are not.103 The reception
of scientific and expert opinion is probably necessary to assist the Court in
resolving this issue.

Petitioner and petitioner-intervenors' argument that the Family Code, by

excluding same-sex couples from marriage, have placed an undue burden on
their religious freedom by failing to legally recognize their
relationship104 similarly calls for the reception of evidence.

Petitioner contends that Articles 1 and 2 of the Family Code are

unconstitutional because they prohibit same-sex couples from founding a
family through the vehicle of marriage in accordance with their religious
convictions, a right protected under Section 3(1) Article XV of the
Constitution.105 Petitioners-intervenors, meanwhile, claim that they are of
the religious conviction that Christianity does not treat homosexuality as a
sin, and that Christianity does not prohibit same-sex marriage; hence, gay
and lesbian Christians can also enter into marriage.106 They further submit
that there exists no substantial distinction between their religious convictions
and the religious convictions of Filipino Catholics and Filipino Muslims, and
yet the latter's religious beliefs enjoy legal recognition from the State.107

For its part, the CRG argues that sex-based conceptions of marriage do not
violate religious freedom. It claims that the limitation of marriage to
opposite-sex couples is a valid state regulation grounded on a purely
legitimate secular purpose. The compelling state interests in procreation,
foundation of the family, and preservation of the tradition and history of
marriage, are enshrined in the Constitution. The CRG maintains that limiting
civil marriages to opposite-sex couples is not unconstitutional simply
because a particular religion or religious group claims that it goes against
their religious beliefs. According to the CRG, allowing such situation will
render the State subservient to the beliefs of said religion or religious
group.108

Relevant to the Court's consideration of the religious argument is the free

exercise clause of the 1987 Constitution.109 This clause guarantees the
liberty of religious conscience and prohibits any degree of compulsion or
burden, whether direct or indirect, in the practice of one's
religion.110 In Estrada v. Escritor,111 the Court established benevolent
neutrality-accommodation as the regime under which a claim of violation of
religious freedom should be considered. The following factual questions
should be resolved through the presentation of evidence: (1) whether the
claimant's right to religious freedom has been burdened by the government
regulation; (2) whether the claimant is sincere in his/her belief, which in turn
constitutes a central tenet of their proclaimed religion; and (3) whether the
State has compelling interest to override the claimant's religious belief and
practice.

Applying the foregoing analysis to this case, petitioner must first show how
the assailed provisions of the Family Code created a burden on their right to
the free exercise of religion; while on the part of the LGBTS Church, it must
prove, foremost, that it is a religion and that same-sex marriage is a central
tenet of its faith. Second, petitioner and the petitioners-intervenors must
demonstrate that they hold a sincere belief in this tenet. Third, the CRG must
establish that the state has a compelling interest to limit marriage to
opposite-sex couples. As was shown earlier, these are factual matters
requiring the presentation of evidence.

Final Words

It is my view that the case before Us presents a cautionary tale of how not to
prove a fundamental right in the context of public interest litigation. I believe
though, that with the dismissal of their petitions, concerned counsel have
been punished enough. Nevertheless, the pursuit (and, maybe, ultimate
acceptance) of the idea of marriage equality need not end here. Rather,
zealous fealty to the Constitution's strictures on case and controversy and
the hierarchy of courts should give the idea of marriage equality a sporting
chance to be, in time, vigorously and properly presented to the Court.

For the reasons above-stated, I vote to DISMISS the petition.

Footnotes

1 Exchange between United States Supreme Court Justice Antonin Scalia and
lawyer Theodore Olson, during the Oral Arguments for Hollingsworth el. al. v.
Perry et. al., 570 U.S. 693 (2013), as cited in David Boies and Theodore
Olson, Redeeming the Dream, Proposition 8 and the Struggle for Marriage
Equality, (2014), p. 254.

2 Sugar is in a romantic and sexual relationship with Joanne Reena "JR"

Gregorio. JR, however, did not join Sugar in filing the petition-in-intervention.
See Rollo, p. 137.

3 Ermita-Malate Hotel and Motel Operators Association, Inc. et al. v. The

Honorable City Mayor of Manila, G.R. No. L-24693, October 23, 1967, 21
SCRA 449, 451-452, citing O'Gorman & Young v. Harford Fire Insurance, Co.,
283 U.S. 251 (1931).

4 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism

Council, G.R. No. 178552 October 5, 2010, 632 SCRA 146, 176.

5 Guingona v. Court of Appeals, G.R. No. 125532, July 10, 1998, 292 SCRA
402, 413-414.

6 Province of North Cotabato v. Government, G.R. No. 183591, October 14,

2008, 586 SCRA 402, 451.
7 Rollo, p. 12.

8 Id. at 12.

9 TSN of the Oral Arguments dated June 19, 2018, pp. 67-68.

10 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160,
216.

11 Id. at 217.

12 People v. Vera, 65 Phil. 56, 89 (1937).

13 David v. Macapagal-Arroyo, supra note 10 at 220-221.

14 Executive Secretary v. Court of Appeals, G.R. No. 131719, May 25, 2004,
429 SCRA 81, 96. See also Godinez v. Court of Appeals, G.R. No. 154330,
February 15, 2007, 516 SCRA 24 and Purok Bagong Silang Association, Inc. v.
Yuipco, G.R. No. 135092, May 4, 2006, 489 SCRA 382.

15 White Light Corporation v. City of Manila, G.R. No. 122846, January 20,
2009, 576 SCRA 416, 430- 431.

16 Bangko Sentral ng Pilipinas v. Campa, Jr., G.R. No. 185979, March 16,
2016, 787 SCRA 476, 498, citing Asian Terminals v. Bautista, G.R. No.
166901, October 27, 2006, 505 SCRA 748, 763.

17 De Borja v. Pinalakas na Ugnayan ng Maliliit na Mangingisda ng Luzon,

Mindanao at Visayas, G.R. Nos. 185320 & 185348, April 19, 2017, 823 SCRA
550, 570.

18 White Light Corporation v. City of Manila, G.R. No. 122846, January 20,
2009, 576 SCRA 416, 430-431.

19 De Borja v. Pinalakas na Ugnayan ng Maliliit na Mangingisda ng Luzon,

Mindanao at Visayas, supra note 17 at 578. Citations omitted.

20 G.R. No. 217158, March 12, 2019.

21 Id.

22 Gios-Samar, Inc. v. Department of Transportation and

Communications, supra note 20.

23 Rollo, p. 16.

24 Id. at 20.

25 Id. 11-12; Section 3 provides: The State shall defend:

(1) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood; x x x

26 See People v. Larrañaga, G.R. No. 138874, February 3, 2004, 421 SCRA
530, 555-556 (2004).

x x x In evaluating a due process claim, the court must determine whether

life, liberty, or property interest exists, and if so, what procedures are
constitutionally required to protect that right. Otherwise stated, the due
process clause calls for two separate inquiries in evaluating an alleged
violation: did the plaintiff lose something that fits into one of the three
protected categories of life, liberty, or property?; and, if so, did the plaintiff
receive the minimum measure of procedural protection warranted under the
circumstances? (Emphasis supplied.)

27 G.R. No. 184535, August 28, 2019.

28 Easterbrook, "Implicit and Explicit Rights of Association," Vol. 10 Harvard

Journal of Law and Public Policy (1987), pp. 91-92.

29 G.R. No. 148208, December 15, 2004, 446 SCRA 299.

30 Id. at 371-374.

31 Crump, "How do the Courts Really Discover Unenumerated Fundamental

Rights - Cataloguing the Methods of Judicial Alchemy," 19 Harv. J. L. & Pub.
Pol'y 795 (1996), pp.799-800.

32 See Central Bank Employees Association, Inc. v. Bangko Central ng

Pilipinas, supra note 29.

33 See Obergefell v. Hodges, 576 U.S. ____ (2015).

34 Id.

35 Republic v. Manalo, G.R. No. 221029, April 24, 2018, citing J. Brion,
Separate Opinion in Biraogo v. Philippine Truth Commission of 2010, G.R. No.
192935, December 7, 2010, 637 SCRA 78, 359-360.

36 G.R. No. 95770, March 1, 1993, 219 SCRA 256. The Court annulled and set
aside orders expelling petitioners from school, thereby upholding their right
under the Constitution to refuse to salute the Philippine flag as guaranteed
under Section 5, Article III.

37 G.R. No. L-72119, May 29, 1987, 150 SCRA 530. The CSC was ordered, via
mandamus, to open its register of eligibles for the position of sanitarian, and
to confirm or deny, the civil service eligibility of certain identified individuals
for said position in the Health Department of Cebu City, in furtherance of the
fundamental right provided under Section 7, Article III of the Constitution.

38 G.R. No. 203335, February 18, 2014, 716 SCRA 237. The Court struck
down as unconstitutional Sections 4(c)(3), 12, and 19 of the Cybercrime Law
for being violative of Sections 4, 3, and 2, respectively, of Article III of the
Constitution.

39 J. Leonen Separate Opinion in Samahan ng mga Progresibong Kabataan

(SPARK) v. Quezon City, G.R. No. 225442, August 8, 2017, 835 SCRA 350.
This case involved a challenge against curfew ordinances for minors for
being violative of Section 6, Article III of the Constitution. There, the Court
chose to apply the strict scrutiny test and found that while the government
was able to show a compelling state interest, it failed to show that the
regulation set forth was the least restrictive means to protect such interest
or the means chosen is narrowly tailored to accomplish the interest.

40 G.R. No. 168338, February 15, 2008, 545 SCRA 441. The Court nullified
the official government statements warning the media against airing the
alleged wiretapped conversation between the President and other
personalities. According to the Court, any attempt to restrict the exercise
guaranteed under Section 4, Article III must be met with "an examination so
critical that only a danger that is clear and present would be allowed to
curtail it."

41 G.R. Nos. 170270 & 179411, April 2, 2009, 583 SCRA 333, 334. The Court
held that respondents' actions, which ranged from withholding permits to
operate to the physical closure of those stations under color of legal
authority, failed to pass the test of strict scrutiny which it deemed
appropriate to assess content-based restrictions on speech. According to the
Court, "[a]s content regulation cannot be done in the absence of any
compelling reason, the burden lies with the government to establish such
compelling reason to infringe the right to free expression." Due to the
government's failure to show a compelling state interest, the Court granted
petitioner's prayer for a writ of mandamus and ordered respondents to
immediately issue the requisite permits.

42 G.R. No. 221318, December 16, 2015, 777 SCRA 574. A challenge was
made against a COMELEC resolution setting a shorter deadline for voter
registration, one outside of the period provided by Section 8 of Republic Act
No. 8189, otherwise known as the "Voter's Registration Act of 1996." The
Court found that existing laws grant the COMELEC the power to fix other
periods and dates for pre-election activities only if the same cannot be
reasonably held within the period provided by law. Since the COMELEC was
unable to justify why the mandate of continuing voter registration cannot be
reasonably held within the period provided, the Court nullified the deadline
set by the COMELEC for being unduly restrictive of the people's right to vote.

43 Poe v. Ullman, 367 U.S. 497, 543 (1961), J. Harlan Dissenting Opinion; see
also my Concurring Opinion in Versoza on how the US Supreme Court has
given "fundamental" status to otherwise unenumerated rights.

44 G.R. No. L-22008, 46 Phil. 440 (1924).

45 x x x [S]aid section creates a term or condition in every contract made by

every person, firm, or corporation with any woman who may, during the
course of her employment, become pregnant, and a failure to include in said
contract the terms fixed by the law, makes the employer criminally liable
subject to a fine and imprisonment. Clearly, therefore, the law has deprived,
every person, firm, or corporation owning or managing a factory, shop or
place of labor of any description within the Philippine Islands, of his right to
enter into contracts of employment upon such terms as he and the employee
may agree upon. The law creates a term in every such contract, without the
consent of the parties. Such persons are, therefore, deprived of their liberty
to contract. The [C]onstitution of the Philippine Islands guarantees to every
citizen his liberty and one of his liberties is the liberty to contract. (Emphasis
supplied.) Id. at 454.

46 See Calalang v. Williams, 70 Phil. 726 (1940); Antamok Goldfields Mining

Company v. Court of Industrial Relations, 70 Phil. 341 (1940). See
also J. Fernando's Opinion in Alfanta v. Noe, G.R. No. L-32362, September 19,
1973, 53 SCRA 76.

47 G.R. No. L-32096, October 24, 1970, 35 SCRA 481.

48 Id. at 493. Citations omitted. Justice Fernando further writes:

x x x [T]o erase any doubts, the Constitutional Convention saw to it that the
concept of laissez-faire was rejected. It entrusted to our government the
responsibility of coping with social and economic problems with the
commensurate power of control over economic affairs. Thereby it could live
up to its commitment to promote the general welfare through state
action. No constitutional objection to regulatory measures adversely
affecting property rights, especially so when public safety is the aim, is likely
to be heeded, unless of course on the clearest and most satisfactory proof of
invasion of rights guaranteed by the Constitution. x xx

xxxx

It is in the light of such rejection of the laissez-faire principle that during the
Commonwealth era, no constitutional infirmity was found to have attached to
legislation covering such subjects as collective bargaining, security of tenure,
minimum wages, compulsory arbitration, the regulation of tenancy as well as
the issuance of securities, and control of public services. So it is likewise
under the Republic this Court having given the seal of approval to more
favorable tenancy laws, nationalization of the retail trade, limitation of the
hours of labor, imposition of price control, requirement of separation pay for
one month, and social security scheme. (Emphasis supplied; citations
omitted.) Id. at 491-493.

49 G.R. No. L-20387, January 31, 1968, 22 SCRA 424.

50 G.R. No. 101083, July 30, 1993, 224 SCRA 792.

51 G.R. No. 204819, April 8, 2014, 721 SCRA 146.

52 Also known as the Responsible Parenthood and Reproductive Health Act of

2012.

53 CONSTITUTION, Art. II, Sec. 15:

The State shall protect and promote the right to health of the people and
instill health consciousness among them.

54 G.R. No. 187417, February 24, 2016,785 SCRA 18.

55 See J. Jardeleza Concurring Opinion, id. at 49-50.

56 G.R. No. 221029, April 24, 2018.

57 J. Harlan Dissenting Opinion in Poe v. Ullman, supra note 43 at 542.

58 Crump, "How Do the Courts Really Discover Unenumerated Fundamental

Rights — Cataloguing the Methods of Judicial Alchemy," 19 Harv. J. L. & Pub.
Pol'y 795 (1996), p. 839. In his article, Crump surveyed more than 10
methodologies used by the court for recognizing unenumerated fundamental
rights. These include the "history and tradition" test under Washington v.
Glucksberg, 521 U.S. 702 (1997), the "essential requisite for ordered liberty"
test under Palko v. Connecticut, 302 U.S. 319 (1937), to the "importance to
the individual test" under Goldberg v. Kelly, 397 U.S. 254 (1970).
59 Farrell, "An Excess of Methods: Identifying Implied Fundamental Rights in
the Supreme Court, 26 St. Louis U. Pub. L. Rev. 203 (2007), p. 209.

60 Id. at 217-221. The US Supreme Court used the "importance" test

in Skinner v. Oklahoma, 316 U.S. 535 (1942), in striking down a state statute
providing for the sterilization of habitual criminals, which by law was limited
to perpetrators of felonies involving moral turpitude. The US Supreme Court
did not uphold the fundamental right to procreate on the basis of any
language in the Bill of Rights; rather, it simply asserted, based on an
incontrovertible fact of human existence, that marriage and procreation are
fundamental to the very existence and survival of the race. This appears to
be the test/approach considered and used by the Court in Oposa v. Factoran,
Jr., G.R. No. 101083, July 30, 1993, 224 SCRA 792.

61 Farrell, "An Excess of Methods: Identifying Implied Fundamental Rights in

the Supreme Court, supra note 59 221-224. In Palko v. Connecticut, 302 U.S.
319 (1937), the US Supreme Court confined fundamental liberties to those
that are "implicit in the concept of ordered liberty" such that "neither liberty
nor justice would exist if they were sacrificed." Palko concerned a state
statute which allowed for the re-trial of an accused if made upon the instance
of the State. There, the accused, who was initially convicted for the crime of
murder in the second degree and sentenced to life in prison, was, upon re-
trial, convicted for the crime of murder in the first degree and sentenced to
death. An action to challenge said state statute was brought before the US
Supreme Court which thereafter upheld it, saying "[t]he right to trial by jury
and the immunity from prosecution except as the result of an indictment
may have value and importance. Even so, they are not of the very essence of
a scheme of ordered liberty. To abolish them is not to violate a 'principle of
justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental.'" See also Crump, "How Do the Courts Really
Discover Unenumerated Fundamental Rights - Cataloguing the Methods of
Judicial Alchemy," 19 Harv. J. L. & Pub. Pol'y 795 (1996), p. 871.

62 Farrell, "An Excess of Methods: Identifying Implied Fundamental Rights in

the Supreme Court, supra note 59 at 224-225. The US Supreme Court also
used the "implicit" test in San Antonio Independent School District v.
Rodriguez, 411 U.S. 1, 135 (1973), where it rejected an asserted "implied
right to education." In seeming rejection of the importance test, the US
Supreme Court declared:
x x x [T]he importance of a service performed by the State does not
determine whether it must be regarded as fundamental for purposes of
examination under the Equal Protection Clause. xxx

xxxx

It is not the province of this Court to create substantive constitutional rights

in the name of guaranteeing equal protection of the laws. Thus, the key to
discovering whether education is "fundamental" is not to be found in
comparisons of the relative societal significance of education, as opposed to
subsistence or housing. Nor is it to be found by weighing whether education
is as important as the right to travel. Rather, the answer lies in assessing
whether there is a right to education explicitly or implicitly guaranteed by the
Constitution.

Education, of course, is not among the rights afforded explicit protection

under our Federal Constitution. Nor do we find any basis for saying it is
implicitly so protected. As we have said, the undisputed importance of
education will not, alone, cause this Court to depart from the usual standard
for reviewing a State's social and economic legislation. (Emphasis
supplied.) Id. at 30-35.

63 Farrell, "An Excess of Methods: Identifying Implied Fundamental Rights in

the Supreme Court, supra note 59 at 225-235. Under this approach, the test
of whether or not a right is fundamental is to be determined by whether or
not it is rooted in our Nation's history and traditions that is, whether the
asserted liberty has been the subject of traditional or historical protection
(See also Crump, "How Do the Courts Really Discover Unenumerated
Fundamental Rights — Cataloguing the Methods of Judicial
Alchemy" supra note 58 at 860). In Bowers v. Hardwick, the US Supreme
Court upheld a Georgia sodomy statute. It claimed that the right asserted,
which it described as "the claimed constitutional right of homosexuals to
engage in acts of sodomy" was not considered fundamental within the
nation's history and traditions, as is evidenced by a slew of anti-sodomy acts
from the time of the enactment of the Bill of Rights to about the time the
case was decided. See also the 1934 case of Snyder v. Massachusetts, 291
U.S. 97 (1934), where an accused sought to challenge his conviction for the
crime of murder on the ground that he was denied permission to attend a
view, which was ordered by the court on motion of the prosecution, at the
opening of the trial. The jurors, under a sworn bailiff, visited the scene of the
crime, accompanied by the judge, the counsel for both parties, and the court
stenographer. The Court affirmed the conviction as there was no showing
that there was a history or tradition in the State of Massachusetts affording
the accused such right. It held that "[t]he constitution and statutes and
judicial decisions of the Commonwealth of Massachusetts are the authentic
forms through which the sense of justice of the People of that
Commonwealth expresses itself in law. We are not to supersede them on the
ground that they deny the essentials of a trial because opinions may differ as
to their policy or fairness." For more recent applications, see Michael H. v.
Gerald D., 491 U.S. 110, 130 (1989) and Washington v. Glucksberg, 521 U.S.
702 (1997). See, however, J. Kennedy's Opinion in Obergefell v. Hodges, 576
U.S. __ (2015), where the Court held that "[h]istory and tradition guide and
discipline this inquiry but do not set its outer boundaries. x x x That method
respects our history and learns from it without allowing the past alone to rule
the present."

64 Farrell, "An Excess of Methods: Identifying Implied Fundamental Rights in

the Supreme Court, supra note 59 at 235-237. In the case of Rochin v.
California, 342 U.S. 165 (1952), the US Supreme Court held that the act of
the police in arranging to have a suspect's stomach pumped to produce
evidence of illegal drugs constituted a kind of conduct that "shocks the
conscience" and therefore violated the Due Process Clause of the
Constitution. This test was again seen appropriate to evaluate "abusive
executive action," which in said case was a police car chase which resulted in
the death of one of those being chased. The Court eventually found in favor
of government as what was determinant of whether the challenged action
"shocks the conscience" was not negligence or deliberate indifference but
whether there was "an intent to harm suspects physically or worsen their
legal plight." Farrell, "An Excess of Methods: Identifying Implied Fundamental
Rights in the Supreme Court, 26 St. Louis U. Pub. L. Rev. 203 (2007), p. 236.

65 Farrell, "An Excess of Methods: Identifying Implied Fundamental Rights in

the Supreme Court, supra note 59 at 237-239. In Shapiro v. Thompson, 394
U.S. 618 (1969), the US Court considered the constitutional "right to travel
interstate" which was alleged to have been infringed by a Connecticut
statute which provided that residents cannot receive welfare benefits until
they had lived in the state for at least one year. According to the Court, while
unwritten in the Constitution, the right to travel is "fundamental to the
concept of our Federal Union," which was, by and large, made up of several
sovereign states coming together.

The New Union would not have been possible, and would have made no
sense, unless citizens of that Union were free to travel from one end of it to
another. Farrell, "An Excess of Methods: Identifying Implied Fundamental
Rights in the Supreme Court, 26 St. Louis U. Pub. L. Rev. 203 (2007), pp. 237-
239.

66 Farrell, "An Excess of Methods: Identifying Implied Fundamental Rights in

the Supreme Court, supra note 59 at 240-241. In Griswold v. Connecticut,
381 U.S. 479 (1965), which dealt with the right of married couples to use
contraceptives, the US Supreme Court, speaking through J. Douglas, "spoke
of the 'penumbras formed by emanations' from the guarantees of specific
kinds of privacy in the Bill of Rights and used these x x x as a basis for
finding a more generalized, more encompassing right of privacy." Farrell, “An
Excess of Methods: Identifying Implied Fundamental Rights in the Supreme
Court, 26 St. Louis U. Pub. L. Rev. 203 (2007), p. 240.)

67 Farrell writes that the US Court has found implied constitutional rights to
vote (See Reynolds v. Sims, 377 U.S. 533 [1964]) and to some level of access
to court processes (See Griffin v. Illinois, 351 U.S. 12 [1956] and Boddie v.
Connecticut, 401 U.S. 371 [1971]) on the ground that "legislation and
adjudication in the courts are essential elements of a democracy and that a
limitation on access to these two institutions is a threat to the institution of
government itself." Farrell, "An Excess of Methods: Identifying Implied
Fundamental Rights in the Supreme Court, 26 St. Louis U. Pub. L. Rev 203
(2007) pp. 241-245.

68 In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.

833 (1992), the Supreme Court used stare decisis, in particular its decision in
the case of Roe v. Wade, 410 U.S. 113 (1093), to explain the nature of the
fundamental right to privacy as it related to abortion. Roe, in turn, also
enumerated several cases from which it understood to have recognized a
broad and generalized right to privacy (which includes a woman's decision
whether or not to terminate her pregnancy) that is part of the Fourteenth
Amendment "liberty." (Farrell, "An Excess of Methods: Identifying Implied
Fundamental Rights in the Supreme Court, 26 St. Louis U. Pub. L. Rev. 203
(2007), p 245-246.) This approach appears to have been used by this Court
in People v. Pomar, 46 Phil. 440 (1924) and J. Jardeleza in his Concurring
Opinion in Capin-Cadiz v. Brent Hospital and Colleges, Inc., G.R. No. 187417,
February 24, 2016, 785 SCRA 18.

69 For in depth discussions of the different methods and approaches, see

Crump, "How do the Courts Really Discover Unenumerated Fundamental
Rights — Cataloguing the Methods of Judicial Alchemy," 19 Harv. J. L. & Pub.
Pol'y 795 (1996); and Farrell, "An Excess of Methods: Identifying Implied
Fundamental Rights in the Supreme Court," 26 St. Louis U. Pub. L. Rev. 203
(2007).

70 135 S. Ct. 2584 (2015).

71 Id. at 2595.

72 539 U.S. 558 (2003). In Lawrence, the US Supreme Court reversed its
earlier ruling in Bowers v. Hardwick, 478 U.S. 186 (1986) and recognized a
liberty of consensual sexual conduct.

73 772 F.3d 388 (2014). The District Court declared MMA and its
implementing rules unconstitutional for violating the equal protection clause.

74 Deboer v. Snyder, 973 F. Supp. 2d 757, 760-761 (2014).

75 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

76 Deboer v. Snyder, supra note 74.

77 Deboer v. Snyder, 772 F.3d 388, 397 (2014).

78 Deboer v. Snyder, supra note 74 at 760.

79 Deboer v. Snyder, 973 F. Supp. 2d 757, 760, 761-768 (2014).

80 704 F. Supp. 2d 921 (2010). Note that Perry is not one of the cases that
comprise Obergefell.

81 Id. at 927. The elected state officials of California, on the other hand,
refused to defend the constitutionality of Proposition 8, so this task was
taken up by its proponents.

82 Id. at 929.

83 Id. The California District Court asked the parties to submit evidence to
address 19 factual questions: (1) the history of discrimination gays and
lesbians have faced; (2) whether the characteristics defining gays and
lesbians as a class might in any way affect their ability to contribute to
society; (3) whether sexual orientation can be changed, and if so, whether
gays and lesbians should be encouraged to change it; (4) the relative power
of gays and lesbians, including successes of both pro-gay and antigay
legislation; (5) the long-standing definition of marriage in California; (6)
whether the exclusion of same-sex couples from marriage leads to increased
stability in opposite-sex marriage; (7) whether permitting same-sex couples
to marry destabilizes opposite-sex marriage; (8) whether a married mother
and father provide the optimal child-rearing environment; (9) whether
excluding same-sex couples from marriage promotes this environment; (10)
whether and how California has acted to promote these interests in other
family law contexts; (11) whether or not Proposition 8 discriminates based on
sexual orientation or gender or both; (12) whether the availability of
opposite-sex marriage is a meaningful option for gays and lesbians; (13)
whether the ban on same-sex marriage meaningfully restricts options
available to heterosexuals; (14) whether requiring one man and one woman
in marriage promotes stereotypical gender roles; (15) whether Proposition 8
was passed with a discriminatory intent; (16) the voters' motivation or
motivations for supporting Proposition 8, including advertisements and ballot
literature considered by California voters; (17) the difference in actual
practice of registered domestic partnerships, civil unions, and marriage; (18)
whether married couples are treated differently from domestic partners in
governmental and non-governmental contexts; and (19) whether the right
[to marriage] asserted by Perry, et al., is "deeply rooted in this Nation's
history and tradition" and thus subject to strict scrutiny under the due
process clause. Cited in David Boies and Theodore Olson, Redeeming the
Dream, Proposition 8 and the Struggle for Marriage Equality, (2014), pp. 77-
78.

84 Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 932.

85 Id. at 934.

86 Id. at 932.

87 Id. at 1003. The defendant public officials of California elected not to

appeal from the ruling of the California District Court. The proponents of
Proposition 8, however, filed an appeal with the Ninth Circuit Court of
Appeals. The Circuit Court found the proponents have standing under federal
law to defend Proposition 8's constitutionality, but nevertheless affirmed the
California District Court on the merits. On further appeal, the US Supreme
Court found that the proponents have no standing to appeal the California
District Court's ruling. It consequently vacated the decision of the Ninth
Circuit Court of Appeals and remanded the case to said court with the
directive to dismiss the appeal for lack of jurisdiction. Hollingsworth et al. v.
Perry et al., 570 U.S. 693 (2013).

88 Rollo, p. 21.

89 Id. at 16-20.

90 Id. at 20-28.
91 Id. at 16.

92 Id. at 19.

93 Id. at 27.

94 Id. at 28.

95 Id. at 21.

96 G.R. No. 190582, April 8, 2010, 618 SCRA 32.

97 Id. at 65.

98 Rollo, p. 21.

99 Id. at 22.

100 Id. at 28.

101 See rollo, pp. 49-50.

102 Rollo, p. 9.

103 Id. at 285. Paragraph 24 of Opposition-In-Intervention.

104 Id. at 558. Paragraph 44, Petitioner's opening statement, oral

arguments.

105 Id. at 11-12. Section 3 provides: The State shall defend:

(1) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood; x x x

106 Id. at 144.

107 Id. at 150-151.

108 Id. at 329. Paragraphs 106 and 109, OSG's Supplemental Comment with
Leave of Court, p. 36.

109 Section 5, Article III of the 1987 Constitution declares that "[n]o law shall
be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed." It
likewise declares that "no religious test shall be required for the exercise of
civil or political rights." This provision in the Bill of Rights encapsulates the
Religion Clauses of our Constitution — the Non-Establishment Clause and the
Free Exercise Clause.
110 Estrada v. Escritor, A.M. No. P-02-1651 (formerly OCA I.P.I. No. 00-1021-
P), August 4, 2003, 408 SCRA 1, 134.

111 A.M. No. P-02-1651 (formerly OCA I.P.I. No. 00-1021-P), June 22, 2006,
492 SCRA 1, 66. In Escritor, the Court is confronted with the issue of whether
Escritor's claim of religious freedom could warrant carving out an exemption
from the Civil Service Law. Escritor, a court interpreter, was charged with
immorality because she cohabited with a man other than her husband during
the subsistence of her marriage. In her defense, Escritor countered that
Jehovah's Witnesses, a religious sect to which she is a member, legitimizes a
union which is otherwise adulterous or bigamous provided that the parties
sign a Declaration of Faithfulness. She and her partner executed and signed
a Declaration of Faithfulness in 1991, thus they are regarded by their Church
as husband and wife. In resolving the case, the Court inquired into three
things: (1) whether Escritor's right to religious freedom has been burdened;
(2) whether Escritor is sincere in her religious belief; and (3) whether the
state has compelling interest to override Escritor's religious belief and
practice.

G.R. No. 213847 August 18, 2015

JUAN PONCE ENRILE, Petitioner,

vs.
SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

BERSAMIN, J.:

The decision whether to detain or release an accused before and during trial
is ultimately an incident of the judicial power to hear and determine his
criminal case. The strength of the Prosecution's case, albeit a good measure
of the accused’s propensity for flight or for causing harm to the public, is
subsidiary to the primary objective of bail, which is to ensure that the
accused appears at trial.1

The Case

Before the Court is the petition for certiorari filed by Senator Juan Ponce
Enrile to assail and annul the resolutions dated July 14, 2014 2 and August 8,
20143 issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-
0238, where he has been charged with plunder along with several others.
Enrile insists that the resolutions, which respectively denied his Motion To Fix
Bail and his Motion For Reconsideration, were issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.

Antecedents

On June 5, 2014, the Office of the Ombudsman charged Enrile and several
others with plunder in the Sandiganbayan on the basis of their purported
involvement in the diversion and misuse of appropriations under the Priority
Development Assistance Fund (PDAF).4 On June 10, 2014 and June 16, 2014,
Enrile respectively filed his Omnibus Motion 5 and Supplemental
Opposition,6 praying, among others, that he be allowed to post bail should
probable cause be found against him. The motions were heard by the
Sandiganbayan after the Prosecution filed its Consolidated Opposition. 7

On July 3, 2014, the Sandiganbaya n issued its resolution denying Enrile’s

motion, particularly on the matter of bail, on the ground of its prematurity
considering that Enrile had not yet then voluntarily surrendered or been
placed under the custody of the law.8 Accordingly, the Sandiganbayan
ordered the arrest of Enrile.9

On the same day that the warrant for his arrest was issued, Enrile voluntarily
surrendered to Director Benjamin Magalong of the Criminal Investigation and
Detection Group (CIDG) in Camp Crame, Quezon City, and was later on
confined at the Philippine National Police (PNP) General Hospital following his
medical examination.10

Thereafter, Enrile filed his Motion for Detention at the PNP General
Hospital ,11 and his Motion to Fix Bail ,12 both dated July 7, 2014, which were
heard by the Sandiganbayan on July 8, 2014. 13 In support of the motions,
Enrile argued that he should be allowed to post bail because: (a) the
Prosecution had not yet established that the evidence of his guilt was strong;
(b) although he was charged with plunder, the penalty as to him would only
be reclusion temporal , not reclusion perpetua ; and (c) he was not a flight
risk, and his age and physical condition must further be seriously considered.

On July 14, 2014, the Sandiganbayan issued its first assailed resolution
denying Enrile’s Motion to Fix Bail, disposing thusly:

x x x [I]t is only after the prosecution shall have presented its evidence and
the Court shall have made a determination that the evidence of guilt is not
strong against accused Enrile can he demand bail as a matter of right. Then
and only then will the Court be duty-bound to fix the amount of his bail.
To be sure, no such determination has been made by the Court. In fact,
accused Enrile has not filed an application for bail. Necessarily, no bail
hearing can even commence. It is thus exceedingly premature for accused
Enrile to ask the Court to fix his bail.

Accused Enrile next argues that the Court should grant him bail because
while he is charged with plunder, "the maximum penalty that may be
possibly imposed on him is reclusion temporal, not reclusion perpetua." He
anchors this claim on Section 2 of R.A. No. 7080, as amended, and on the
allegation that he is over seventy (70) years old and that he voluntarily
surrendered. "Accordingly, it may be said that the crime charged against
Enrile is not punishable by reclusion perpetua, and thus bailable."

The argument has no merit.

x x x [F]or purposes of bail, the presence of mitigating circumstance/s is not

taken into consideration. These circumstances will only be appreciated in the
imposition of the proper penalty after trial should the accused be found
guilty of the offense charged. x x x

Lastly, accused Enrile asserts that the Court should already fix his bail
because he is not a flight risk and his physical condition must also be
seriously considered by the Court.

Admittedly, the accused’s age, physical condition and his being a flight risk
are among the factors that are considered in fixing a reasonable amount of
bail. However, as explained above, it is premature for the Court to fix the
amount of bail without an anterior showing that the evidence of guilt against
accused Enrile is not strong.

WHEREFORE, premises considered, accused Juan Ponce Enrile’s Motion to Fix

Bail dated July 7, 2014 is DENIED for lack of merit.

SO ORDERED.14

On August 8, 2014, the Sandiganbayan issued it s second assailed resolution

to deny Enrile’s motion for reconsideration filed vis-à-vis the July 14, 2014
resolution.15

Enrile raises the following grounds in support of his petition for certiorari ,
namely:

A. Before judgment of the Sandiganbayan, Enrile is bailable as a

matter of right. Enrile may be deemed to fall within the exception
only upon concurrence of two (2) circumstances: (i) where the
offense is punishable by reclusion perpetua, and (ii) when evidence
of guilt is strong.

B. The prosecution failed to show clearly and conclusively that

Enrile, if ever he would be convicted, is punishable by reclusion
perpetua; hence, Enrile is entitled to bail as a matter of right.

C. The prosecution failed to show clearly and conclusively that

evidence of Enrile’s guilt (if ever) is strong; hence, Enrile is entitled
to bail as a matter of right.

D. At any rate, Enrile may be bailable as he is not a flight risk. 16

Enrile claims that before judgment of conviction, an accused is entitled to

bail as matter of right; th at it is the duty and burden of the Prosecution to
show clearly and conclusively that Enrile comes under the exception and
cannot be excluded from enjoying the right to bail; that the Prosecution has
failed to establish that Enrile, if convicted of plunder, is punishable by
reclusion perpetua considering the presence of two mitigating circumstances
– his age and his voluntary surrender; that the Prosecution has not come
forward with proof showing that his guilt for the crime of plunder is strong;
and that he should not be considered a flight risk taking into account that he
is already over the age of 90, his medical condition, and his social standing.

In its Comment ,17 the Ombudsman contends that Enrile’s right to bail is
discretionary as he is charged with a capital offense; that to be granted bail,
it is mandatory that a bail hearing be conducted to determine whether there
is strong evidence of his guilt, or the lack of it; and that entitlement to bail
considers the imposable penalty, regardless of the attendant circumstances.

Ruling of the Court

The petition for certiorari is meritorious.

1.
Bail protects the right of the accused to
due process and to be presumed innocent

In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved.18 The presumption of innocence is rooted in the
guarantee of due process, and is safeguarded by the constitutional right to
be released on bail,19 and further binds the court to wait until after trial to
impose any punishment on the accused.20
It is worthy to note that bail is not granted to prevent the accused from
committing additional crimes.[[21] The purpose of bail is to guarantee the
appearance of the accused at the trial, or whenever so required by the trial
court. The amount of bail should be high enough to assure the presence of
the accused when so required, but it should be no higher than is reasonably
calculated to fulfill this purpose.22 Thus, bail acts as a reconciling mechanism
to accommodate both the accused’s interest in his provisional liberty before
or during the trial, and the society’s interest in assuring the accused’s
presence at trial.23

2.
Bail may be granted as a
matter of right or of discretion

The right to bail is expressly afforded by Section 13, Article III (Bill of Rights)
of the Constitution, viz.:

x x x All persons, except those charged with offenses punishable by reclusion

perpetua when evidence of guilt is strong, shall, before conviction, be
bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not
be required.

This constitutional provision is repeated in Section 7, Rule 114 24 of the Rules

of Court , as follows:

Section 7. Capital offense or an offense punishable by reclusion perpetua or

life imprisonment, not bailable. — No person charged with a capital offense,
or an offense punishable by reclusion perpetua or life imprisonment, shall be
admitted to bail when evidence of guilt is strong, regardless of the stage of
the criminal prosecution.

A capital offense in the context of the rule refers to an offense that, under
the law existing at the time of its commission and the application for
admission to bail, may be punished with death. 25

The general rule is, therefore, that any person, before being convicted of any
criminal offense, shall be bailable, unless he is charged with a capital
offense, or with an offense punishable with reclusion perpetua or life
imprisonment, and the evidence of his guilt is strong. Hence, from the
moment he is placed under arrest, or is detained or restrained by the officers
of the law, he can claim the guarantee of his provisional liberty under the Bill
of Rights, and he retains his right to bail unless he is charged with a capital
offense, or with an offense punishable with reclusion perpetua or life
imprisonment, and the evidence of his guilt is strong. 26 Once it has been
established that the evidence of guilt is strong, no right to bail shall be
recognized.27

As a result, all criminal cases within the competence of the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit
Trial Court are bailable as matter of right because these courts have no
jurisdiction to try capital offenses, or offenses punishable with reclusion
perpetua or life imprisonment. Likewise, bail is a matter of right prior to
conviction by the Regional Trial Court (RTC) for any offense not punishable by
death, reclusion perpetua , or life imprisonment, or even prior to conviction
for an offense punishable by death, reclusion perpetua , or life imprisonment
when evidence of guilt is not strong.28

On the other hand, the granting of bail is discretionary: (1) upon conviction
by the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment;29 or (2) if the RTC has imposed a penalty of imprisonment
exceeding six years, provided none of the circumstances enumerated under
paragraph 3 of Section 5, Rule 114 is present, as follows:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has

committed the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded

sentence, or violated the conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or

conditional pardon;

(d) That the circumstances of hi s case indicate the probability of flight if

released on bail; or

(e) That there is undue risk that he may commit another crime during the
pendency of the appeal.

3.
Admission to bail in offenses punished
by death, or life imprisonment, or reclusion
perpetua is subject to judicial discretion

For purposes of admission to bail, the determination of whether or not

evidence of guilt is strong in criminal cases involving capital offenses, or
offenses punishable with reclusion perpetua or life imprisonment lies within
the discretion of the trial court. But, as the Court has held in Concerned
Citizens v. Elma ,30 "such discretion may be exercised only after the hearing
called to ascertain the degree of guilt of the accused for the purpose of
whether or not he should be granted provisional liberty." It is axiomatic,
therefore, that bail cannot be allowed when its grant is a matter of discretion
on the part of the trial court unless there has been a hearing with notice to
the Prosecution.31 The indispensability of the hearing with notice has been
aptly explained in Aguirre v. Belmonte, viz. : 32

x x x Even before its pronouncement in the Lim case, this Court already ruled
in People vs. Dacudao, etc., et al. that a hearing is mandatory before bail can
be granted to an accused who is charged with a capital offense, in this wise:

The respondent court acted irregularly in granting bail in a murder case

without any hearing on the motion asking for it, without bothering to ask the
prosecution for its conformity or comment, as it turned out later, over its
strong objections. The court granted bail on the sole basis of the complaint
and the affidavits of three policemen, not one of whom apparently witnessed
the killing. Whatever the court possessed at the time it issued the
questioned ruling was intended only for prima facie determining whether or
not there is sufficient ground to engender a well-founded belief that the
crime was committed and pinpointing the persons who probably committed
it. Whether or not the evidence of guilt is strong for each individual accused
still has to be established unless the prosecution submits the issue on
whatever it has already presented. To appreciate the strength or weakness of
the evidence of guilt, the prosecution must be consulted or heard. It is
equally entitled as the accused to due process.

Certain guidelines in the fixing of a bailbond call for the presentation of

evidence and reasonable opportunity for the prosecution to refute it. Among
them are the nature and circumstances of the crime, character and
reputation of the accused, the weight of the evidence against him, the
probability of the accused appearing at the trial, whether or not the accused
is a fugitive from justice, and whether or not the accused is under bond in
other cases. (Section 6, Rule 114, Rules of Court) It is highly doubtful if the
trial court can appreciate these guidelines in an ex-parte determination
where the Fiscal is neither present nor heard.

The hearing, which may be either summary or otherwise, in the discretion of

the court, should primarily determine whether or not the evidence of guilt
against the accused is strong. For this purpose, a summary hearing means:
x x x such brief and speedy method of receiving and considering the
evidence of guilt as is practicable and consistent with the purpose of hearing
which is merely to determine the weight of evidence for purposes of bail. On
such hearing, the court does not sit to try the merits or to enter into any nice
inquiry as to the weight that ought to be allowed to the evidence for or
against the accused, nor will it speculate on the outcome of the trial or on
what further evidence may be therein offered or admitted. The course of
inquiry may be left to the discretion of the court which may confine itself to
receiving such evidence as has reference to substantial matters, avoiding
unnecessary thoroughness in the examination and cross examination. 33

In resolving bail applications of the accused who is charged with a capital

offense, or an offense punishable by reclusion perpetua or life imprisonment,
the trial judge is expected to comply with the guidelines outlined in Cortes v.
Catral,34 to wit:

1. In all cases, whether bail is a matter of right or of discretion, notify the

prosecutor of the hearing of the application for bail or require him to submit
his recommendation (Section 18, Rule 114 of the Rules of Court, as
amended);

2. Where bail is a matter of discretion, conduct a hearing of the application

for bail regardless of whether or not the prosecution refuses to present
evidence to show that the guilt of the accused is strong for the purpose of
enabling the court to exercise its sound discretion; (Section 7 and 8, supra)

3. Decide whether the guilt of the accused is strong based on the summary
of evidence of the prosecution;

4. If the guilt of the accused is no t strong, discharge the accused upon the
approval of the bailbond (Section 19, supra) Otherwise petition should be
denied.

3.
Enrile’s poor health justifies his admission to bail

We first note that Enrile has averred in his Motion to Fix Bail the presence of
two mitigating circumstances that should be appreciated in his favor,
namely: that he was already over 70 years at the time of the alleged
commission of the offense, and that he voluntarily surrendered. 35

Enrile’s averment has been mainly uncontested by the Prosecution, whose

Opposition to the Motion to Fix Bail has only argued that –
8. As regards the assertion that the maximum possible penalty that might be
imposed upon Enrile is only reclusion temporal due to the presence of two
mitigating circumstances, suffice it to state that the presence or absence of
mitigating circumstances is also not consideration that the Constitution
deemed worthy. The relevant clause in Section 13 is "charged with an
offense punishable by." It is, therefore, the maximum penalty provided by the
offense that has bearing and not the possibility of mitigating circumstances
being appreciated in the accused’s favor.36

Yet, we do not determine now the question of whether or not Enrile’s

averment on the presence of the two mitigating circumstances could entitle
him to bail despite the crime alleged against him being punishable with
reclusion perpetua ,37 simply because the determination, being primarily
factual in context, is ideally to be made by the trial court.

Nonetheless, in now granting Enrile’s petition for certiorari, the Court is

guided by the earlier mentioned principal purpose of bail, which is to
guarantee the appearance of the accused at the trial, or whenever so
required by the court. The Court is further mindful of the Philippines’
responsibility in the international community arising from the national
commitment under the Universal Declaration of Human Rights to:

x x x uphold the fundamental human rights as well as value the worth and
dignity of every person. This commitment is enshrined in Section II, Article II
of our Constitution which provides: "The State values the dignity of every
human person and guarantees full respect for human rights." The Philippines,
therefore, has the responsibility of protecting and promoting the right of
every person to liberty and due process, ensuring that those detained or
arrested can participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and order their release
if justified. In other words, the Philippine authorities are under obligation to
make available to every person under detention such remedies which
safeguard their fundamental right to liberty. These remedies include the right
to be admitted to bail.38

This national commitment to uphold the fundamental human rights as well

as value the worth and dignity of every person has authorized the grant of
bail not only to those charged in criminal proceedings but also to extraditees
upon a clear and convincing showing: (1 ) that the detainee will not be a
flight risk or a danger to the community; and (2 ) that there exist special,
humanitarian and compelling circumstances. 39
In our view, his social and political standing and his having immediately
surrendered to the authorities upon his being charged in court indicate that
the risk of his flight or escape from this jurisdiction is highly unlikely. His
personal disposition from the onset of his indictment for plunder, formal or
otherwise, has demonstrated his utter respect for the legal processes of this
country. We also do not ignore that at an earlier time many years ago when
he had been charged with rebellion with murder and multiple frustrated
murder, he already evinced a similar personal disposition of respect for the
legal processes, and was granted bail during the pendency of his trial
because he was not seen as a flight risk. 40 With his solid reputation in both
his public and his private lives, his long years of public service, and history’s
judgment of him being at stake, he should be granted bail.

The currently fragile state of Enrile’s health presents another compelling

justification for his admission to bail, but which the Sandiganbayan did not
recognize.

In his testimony in the Sandiganbayan, 41 Dr. Jose C. Gonzales, the Director of

the Philippine General Hospital (PGH), classified Enrile as a geriatric patient
who was found during the medical examinations conducted at the UP-PGH to
be suffering from the following conditions:

(1) Chronic Hypertension with fluctuating blood pressure levels on multiple

drug therapy; (Annexes 1.1, 1.2, 1.3);

(2) Diffuse atherosclerotic cardiovascular disease composed of the following :

a. Previous history of cerebrovascular disease with carotid and vertebral

artery disease ; (Annexes 1.4, 4.1)

b. Heavy coronary artery calcifications; (Annex 1.5)

c. Ankle Brachial Index suggestive of arterial calcifications. (Annex 1.6)

(3) Atrial and Ventricular Arrhythmia (irregular heart beat) documented by

Holter monitoring ; (Annexes 1.7.1, 1.7.2)

(4) Asthma-COPD Overlap Syndrom (ACOS) and postnasal drip syndrome;

(Annexes 2.1, 2.2)

(5) Ophthalmology:

a. Age-related mascular degeneration, neovascular s/p laser of the Retina,

s/p Lucentis intra-ocular injections; (Annexes 3.0, 3.1, 3.2)
b. S/p Cataract surgery with posterior chamber intraocular lens. (Annexes
3.1, 3.2)

(6) Historical diagnoses of the following:

a. High blood sugar/diabetes on medications;

b. High cholesterol levels/dyslipidemia;

c. Alpha thalassemia;

d. Gait/balance disorder;

e. Upper gastrointestinal bleeding (etiology uncertain) in 2014;

f. Benign prostatic hypertrophy (with documented enlarged prostate on

recent ultrasound).42

Dr. Gonzales attested that the following medical conditions, singly or

collectively, could pose significant risk s to the life of Enrile, to wit: (1)
uncontrolled hypertension, because it could lead to brain or heart
complications, including recurrence of stroke; (2) arrhythmia, because it
could lead to fatal or non-fatal cardiovascular events, especially under
stressful conditions; (3) coronary calcifications associated with coronary
artery disease, because they could indicate a future risk for heart attack
under stressful conditions; and (4) exacerbations of ACOS, because they
could be triggered by certain circumstances (like excessive heat, humidity,
dust or allergen exposure) which could cause a deterioration in patients with
asthma or COPD.43

Based on foregoing, there is no question at all that Enrile’s advanced age

and ill health required special medical attention. His confinement at the PNP
General Hospital, albeit at his own instance, 44 was not even recommended by
the officer-in-charge (O IC) and the internist doctor of that medical facility
because of the limitations in the medical support at that hospital. Their
testimonies ran as follows:

JUSTICE MARTIRES:

The question is, do you feel comfortable with the continued confinement of
Senator Enrile at the Philippine National Police Hospital?

DR. SERVILLANO:

No, Your Honor.

JUSTICE MARTIRES:
Director, doctor, do you feel comfortable with the continued confinement of
Senator Enrile at the PNP Hospital ?

PSUPT. JOCSON:

No, Your Honor.

JUSTICE MARTIRES:

Why?

PSUPT. JOCSON:

Because during emergency cases, Your Honor, we cannot give him the best.

JUSTICE MARTIRES:

At present, since you are the attending physician of the accused, Senator
Enrile, are you happy or have any fear in your heart of the present condition
of the accused vis a vis the facilities of the hospital?

DR. SERVILLANO:

Yes, Your Honor. I have a fear.

JUSTICE MARTIRES:

That you will not be able to address in an emergency situation?

DR. SERVILLANO:

Your Honor, in case of emergency situation we can handle it but probably if

the condition of the patient worsen, we have no facilities to do those things,
Your Honor.45

Bail for the provisional liberty of the accused, regardless of the crime
charged, should be allowed independently of the merits of the charge,
provided his continued incarceration is clearly shown to be injurious to his
health or to endanger his life. Indeed, denying him bail despite imperiling his
health and life would not serve the true objective of preventive incarceration
during the trial.

Granting bail to Enrile on the foregoing reasons is not unprecedented. The

Court has already held in Dela Rama v. The People’s Court: 46

x x x This court, in disposing of the first petition for certiorari, held the
following:
x x x [ U]nless allowance of bail is forbidden by law in the particular case, the
illness of the prisoner,

independently of the merits of the case, is a circumstance, and the humanity

of the law makes it a consideration which should, regardless of the charge
and the stage of the proceeding, influence the court to exercise its discretion
to admit the prisoner to bail ;47

xxx

Considering the report of the Medical Director of the Quezon Institute to the
effect that the petitioner "is actually suffering from minimal, early, unstable
type of pulmonary tuberculosis, and chronic, granular pharyngitis," and that
in said institute they "have seen similar cases, later progressing into advance
stages when the treatment and medicine are no longer of any avail;" taking
into consideration that the petitioner’s previous petition for bail was denied
by the People’s Court on the ground that the petitioner was suffering from
quiescent and not active tuberculosis, and the implied purpose of the
People’s Court in sending the petitioner to the Quezon Institute for clinical
examination and diagnosis of the actual condition of his lungs, was evidently
to verify whether the petitioner is suffering from active tuberculosis, in order
to act accordingly in deciding his petition for bail; and considering further
that the said People’s Court has adopted and applied the well-established
doctrine cited in our above-quoted resolution, in several cases, among them,
the cases against Pio Duran (case No. 3324) and Benigno Aquino (case No.
3527), in which the said defendants were released on bail on the ground that
they were ill and their continued confinement in New Bilibid Prison would be
injurious to their health or endanger their life; it is evident and we
consequently hold that the People’s Court acted with grave abuse of
discretion in refusing to re lease the petitioner on bail. 48

It is relevant to observe that granting provisional liberty to Enrile will then

enable him to have his medical condition be properly addressed and better
attended to by competent physicians in the hospitals of his choice. This will
not only aid in his adequate preparation of his defense but, more importantly
, will guarantee his appearance in court for the trial.

On the other hand, to mark time in order to wait for the trial to finish before
a meaningful consideration of the application for bail can be had is to defeat
the objective of bail, which is to entitle the accused to provisional liberty
pending the trial. There may be circumstances decisive of the issue of bail –
whose existence is either admitted by the Prosecution, or is properly the
subject of judicial notice – that the courts can already consider in resolving
the application for bail without awaiting the trial to finish. 49 The Court thus
balances the scales of justice by protecting the interest of the People through
ensuring his personal appearance at the trial, and at the same time realizing
for him the guarantees of due process as well as to be presumed innocent
until proven guilty.

Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the

objective of bail to ensure the appearance of the accused during the trial;
and unwarrantedly disregarded the clear showing of the fragile health and
advanced age of Enrile. As such, the Sandiganbayan gravely abused its
discretion in denying Enrile’s Motion To Fix Bail. Grave abuse of discretion, as
the ground for the issuance of the writ of certiorari , connotes whimsical and
capricious exercise of judgment as is equivalent to excess, or lack of
jurisdiction.50 The abuse must be so patent and gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform a duty enjoined
by law, or to act at all in contemplation of law as where the power is
exercised in an arbitrary and despotic manner by reason of passion or
hostility.51 WHEREFORE, the Court GRANTS the petition for certiorari ; ISSUES
the writ of certiorari ANNULING and SETTING ASIDE the Resolutions issued by
the Sandiganbayan (Third Division) in Case No. SB-14 CRM-0238 on July 14,
2014 and August 8, 2014; ORDERS the PROVISIONAL RELEASE of petitioner
Juan Ponce Enrile in Case No. SB-14-CRM-0238 upon posting of a cash bond
of ₱1,000,000.00 in the Sandiganbayan; and DIRECTS the immediate release
of petitioner Juan Ponce Enrile from custody unless he is being detained for
some other lawful cause.

No pronouncement on costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
 TERESITA J. LEONARDO-DE
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

DIOSDADO M. PERALTA MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

(On Official Leave)

JOSE PORTUGAL PEREZ
MARTIN S. VILLARAMA, JR.*
Associate Justice
Associate Justice

(On Sick Leave)

JOSE CATRAL MENDOZA
BIENVENIDO L. REYES**
Associate Justice
Associate Justice

MARVIC MARIO VICTOR F.

ESTELA M. PERLAS-BERNABE
LEONEN
Associate Justice
Associate Justice

FRANCIS H. JARDELEZA***
Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
court.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes
*
On official leave.
**
On sick leave.
***
No part.
1
See Ariana Lindermayer, What the Right Hand Gives: Prohibitive
Interpretations of the State Constitutional Right to Bail, Fordham Law Review,
Vol. 78, Issue 1 (2009), pp. 307-309.
2
Rollo, pp. 79-88; penned by Associate Justice Amparo M. Cabotaje-Tang, and
concurred in by Associate Justice Samuel R. Martires and Associate Justi ce
Alex L. Quiroz.
3
Id. at 89-102.
4
Id. at 107-108.
5
Id. at 103-157.
6
Id. at 163-192.
7
Id. at 193-221.
8
Id. at 222-241.
9
Id. at 241.
10
Id. at 242-243.
11
Id. at 244-247.
12
Id. at 249-256.
13
Id. at 13.
14
Id. at 84-88.
15
Id. at 89-102.
16
Id. at 16-19.
17
Id. at 526-542.
18
Section 14, (2), Article III of the 1987 Constitution.
19
Government of the United States of America v. Purganan, G.R. No. 148571,
September 24, 2002, 389 SCRA 623 where the Court said that the
constitutional right to bail flows from the presumption of innocence in favor
of every accused who should not be subjected to the loss of freedom as
thereafter he would be entitled to acquittal, unless his guilt be proved
beyond reasonable doubt; see also Shima Baradaran, Restoring the
Presumption of Innocence, Ohio State Law Journal, Vol. 72 (2011), p. 728.
20
Baradaran, supra note 19, at 736.
21
Id. at 731.
22
Yap, Jr. v. Court of Appeals, G.R. No. 141529, June 6, 2001, 358 SCRA 564,
572.
23
Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010, 615 SCRA
619, 628.
24
As amended by A.M. No. 00-5-03-SC, December 1, 2000.
25
Section 6, Rule 114 of the Rules of Court.
26
Government of the United States of America v. Purganan , supra note 19,
at 693.
27
Id.
28
Section 4, Rule 114 of the Rules of Court provides:

Section 4. Bail, a matter of right; exception. — All persons in custody shall be

admitted to bail as a matter of right, with sufficient sureties, or released on
recognizance as prescribed by law or this Rule (a) before or after conviction
by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in
Cities, or Municipal Circuit Trial Court, and (b) before conviction by the
Regional Trial Court of an offense not punishable by death, reclusion
perpetua , or life imprisonment.
29
Section 5, Paragraph 1, Rule 114 of the Rules of Court.
30
A.M. No. RTJ-94-1183, February 6, 1995, 241 SCRA 84, 88.
31
Gacal v. Infante, A.M. No. RTJ- 04-1845 (Formerly A.M. No. I.P.I. No. 03-
1831-RTJ), October 5, 2011, 658 SCRA 535, 536.
32
A.M. No. RTJ-93-1052, October 27, 1994, 237 SCRA 778, 789-790.
33
Cortes v. Catral, A.M. No. RTJ-97-1387, September 10, 1997, 279 SCRA 1,
11.
34
Id. at 18.
35
Rollo, pp. 252-253.
36
Id. at 260.
37
Worthy to mention at this juncture is that the Court En Banc, in People v.
Genosa (G.R. No. 135981, January 15, 2004, 419 SCRA 537), a criminal
prosecution for parricide in which the penalty is reclusion perpetua to death
under Article 246 of the Revised Penal Code, appreciated the concurrence of
two mitigating circumstances and no aggravating circumstance as a
privileged mitigating circumstance, and consequently lowered the penalty
imposed on the accused to reclusion temporal in its medium period.
38
Government of Hong Kong Special Administrative Region v. Olalia, Jr., G.R.
No. 153675, April 19, 2007, 521 SCRA 470, 482 (bold underscoring supplied
for emphasis).
39
Rodriguez v. Presiding Judge, RTC, Manila, Br. 17, G.R. No.157977, February
27, 2006, 483 SCRA 290, 298.
40
Rollo, pp. 559, 571-576.
41
Id. at 339-340 (TSN of July 14, 2014).
42
Id. at 373-374 (bold underscoring supplied for emphasis).
43
Id. at 334-335, 374-375.
44
Id. at 244-247.
45
Id. at 485-488 (TSN of September 4, 2014).
46
77 Phil. 461 (October 2, 1946), in which the pending criminal case against
the petitioner was for treason.
47
Id. at 462.
48
Id. at 465-466.
49
Bravo, Jr. v. Borja, No. L-65228, February 18, 1985, 134 SCRA 466, where
the Court observed:

To allow bail on the basis of the penalty to be actually imposed would require
a consideration not only of the evidence of the commission of the crime but
also evidence of the aggravating and mitigating circumstances. There would
then be a need for a complete trial, after which the judge would be just
about ready to render a decision in the case. As perceptively observed by the
Solicitor General, such procedure would defeat the purpose of bail, which is
to entitle the accused to provisional liberty pending trial.
50
Republic v. Sandiganbayan ( Second Division ), G.R. No. 129406, March 6,
2006, 484 SCRA 119, 127; Litton Mills, Inc. v. Galleon Trader, Inc ., G.R. No. L-
40867, July 26, 1988, 163 SCRA 489, 494.
51
Angara v. Fedman Development Corporation, G.R. No. 156822, October 18,
2004, 440 SCRA 467, 478; Duero v. Court of Appeals, G.R. No. 131282,
January 4, 2002, 373 SCRA 11, 17.

G.R. No. 220598

GLORIA MACAPAGAL ARROYO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES AND THE SANDIGANBAYAN, (First
Division), Respondents

RESOLUTION

BERSAMIN,, J.:

On July 19, 2016, the Court promulgated its decision, disposing:

WHEREFORE, the Court GRANTS the petitions for certiorari; ANNULS and
SETS ASIDE the resolutions issued in Criminal Case No. SB-12-CRM-0174 by
the Sandiganbayan on April 6, 2015 and September 10, 2015; GRANTS the
petitioners' respective demurrers to evidence; DISMISSES Criminal Case No.
SB-12-CRM-0174 as to the petitioners GLORIAMACAPAGAL-
ARROYO and BENIGNOAGUAS for insufficiency of evidence; ORDERS the
immediate release from detention of said petitioners; and MAKES no
pronouncements on costs of suit.

SO ORDERED. 1

On August 3, 2016, the State, through the Office of the Ombudsman, has
moved for the reconsideration of the decision, submitting that:

I. THIS HONORABLE COURT'S GIVING DUE COURSE TO A CERTIORARI

ACTION ASSAILING AN INTERLOCUTORY ORDER DENYING DEMURRER
TO EVIDENCE VIOLA TES RULE 119, SECTION 23 OF THE RULES OF
COURT, WHICH PROVIDES THAT AN ORDER DENYING THE DEMURRER
TO EVIDENCE SHALL NOT BE REVIEWABLE BY APPEAL OR BY
CERTIORARI BEFORE JUDGMENT.

II. THE HONORABLE COURT COMMITTED GRAVE ERRORS WHICH

AMOUNT TO A VIOLATION OR DEPRIVATION OF THE STATE'S
FUNDAMENTAL RIGHT TO DUE PROCESS OF LAW.

A. THE DECISION REQUIRES ADDITIONAL ELEMENTS IN THE

PROSECUTION OF PLUNDER, VIZ. IDENTIFICATION OF THE MAIN
PLUNDERER AND PERSONAL BENEFIT TO HIM/HER, BOTH OF WHICH
ARE NOT PROVIDED IN THE TEXT OF REPUBLIC ACT (R.A.) NO. 7080.

B. THE EVIDENCE PRESENTED BY THE PROSECUTION WAS NOT FULLY

TAKEN INTO ACCOUNT, INCLUDING BUT NOT LIMITED TO
THE IRREGULARITIES IN THE CONFIDENTIAL/INTELLIGENCE FUND
(CIF) DISBURSEMENT PROCESS, QUESTIONABLE PRACTICE OF CO-
MINGLING OF FUNDS AND AGUAS' REPORTS TO THE COMMISSION ON
AUDIT (COA) THAT BULK OF THE PHP365,997,915.00 WITHDRAWN
FROM THE PHILIPPINE CHARITY SWEEPSTAKES OFFICE'S (PCSO) CIF
WERE DIVERTED TO THE ARROYO-HEADED OFFICE OF THE
PRESIDENT.

C. ARROYO AND AGUAS, BY INDISPENSABLE COOPERATION, IN

CONSPIRACY WITH THEIR COACCUSED IN SB-12-CRM-0174,
COMMITTED PLUNDER VIA· A COMPLEX ILLEGAL SCHEME WHICH
DEFRAUDED PCSO IN HUNDREDS OF MILLIONS OF PESOS.

D. EVEN ASSUMING THAT THE ELEMENTS OF PLUNDER WERE NOT

PROVEN BEYOND REASONABLE DOUBT, THE EVIDENCE PRESENTED
BY THE PEOPLE SHOWS, BEYOND REASONABLE DOUBT, THAT
ARROYO, AGUAS AND THEIR COACCUSED IN SB-12-CRM-0174 ARE
GUILTY OF MALVERSATION.2

In contrast, the petitioners submit that the decision has effectively barred
the consideration and granting of the motion for reconsideration of the State
because doing so would amount to the re-prosecution or revival of the
charge against them despite their acquittal, and would thereby violate the
constitutional proscription against double jeopardy.

Petitioner Gloria M. Macapagal-Arroyo (Arroyo) points out that the State

miserably failed to prove the corpus delicti of plunder; that the Court
correctly required the identification of the main plunderer as well as personal
benefit on the part of the raider of the public treasury to enable the
successful prosecution of the crime of plunder; that the State did not prove
the conspiracy that justified her inclusion in the charge; that to sustain the
case for malversation against her, in lieu of plunder, would violate her right
to be informed of the accusation against her because the information did not
necessarily include the crime of malversation; and that even if the
information did so, the constitutional prohibition against double jeopardy
already barred the re-opening of the case for that purpose.
Petitioner Benigno B. Aguas echoes the contentions of Arroyo in urging the
Com1 to deny the motion for reconsideration.

In reply, the State avers that the prohibition against double jeopardy does
not apply because it was denied its day in court, thereby rendering the
decision void; that the Court should re-examine the facts and pieces of
evidence in order to find the petitioners guilty as charged; and that the
allegations of the information sufficiently included all that was necessary to
fully inform the petitioners of the accusations against them.

Ruling of the Court

The Court DENIES the motion for reconsideration for its lack of merit.

To start with, the State argues' that the consolidated petitions

for certiorari were improper remedies in light of Section 23, Rule 119 of
the Rules of Court expressly prohibiting the review of the denial of their
demurrer prior to the judgment in the case either by appeal or
by certiorari; that the Court has thereby limited its own power, which should
necessarily prevent the giving of due course to the petitions for certiorari, as
well as the undoing of the order denying the petitioners' demurrer to
evidence; that the proper remedy under the Rules of Court was for the
petitioners to proceed to trial and to present their evidence-in-chief thereat;
and that even if there had been grave abuse of discretion attending the
denial, the Court's certiorari powers should be exercised only upon the
petitioners' compliance with the stringent requirements of Rule 65,
particularly with the requirement that there be no plain, speedy or adequate
remedy in the ordinary course of law, which they did not establish.

Section 23, Rule 119 of the Rules of Court, pertinently provides:

Section 23. Demurrer to evidence. – xxx

xxxx

The order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself shall not be reviewable by appeal or
by certiorari before judgment. (n)

The argument of the State, which is really a repetition of its earlier

submission, was squarely resolved in the decision, as follows:

The Court holds that it should take cognizance of the petitions

for certiorari because the Sandiganbayan, as shall shortly be demonstrated,
gravely abused its discretion amounting to lack or excess of jurisdiction.
The special civil action for certiorari is generally not proper to assail such an
interlocutory order issued by the trial court because of the availability of
another remedy in the ordinary course of law. Moreover, Section 23, Rule 119
of the Rules of Court expressly provides that "the order denying the motion
for leave of court to file demurrer to evidence or the demurrer itself shall not
be reviewable by appeal or by certiorari before judgment." It is not an
insuperable obstacle to this action, however, that the denial of the demurrers
to evidence of the petitioners was an interlocutory order that did not
terminate the proceedings, and the proper recourse of the demurring
accused was to go to trial, and that in case of their conviction they may then
appeal the conviction, and assign the denial as among the errors to be
reviewed. Indeed, it is doctrinal that the situations in which the writ
of certiorari may issue should not be limited, because to do so -

x x x would be to destroy its comprehensiveness and usefulness. So wide is

the discretion of the com1 that authority is not wanting to show
that certiorari is more discretionary than either prohibition
or mandamus. In the exercise of oursuperintending control over other
courts, we are to be guided by all the circumstances of each
particular case 'as the ends of justice may require.' So it is that the
writ will be granted where necessary to prevent a substantial wrong
or to do substantial justice.

The Constitution itself has imposed upon the Court and the other courts of
justice the duty to correct errors of jurisdiction as a result of capricious,
arbitrary, whimsical and despotic exercise of discretion by expressly
incorporating in Section 1 of Article VIII the following provision:

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. The
exercise of this power to correct grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government cannot be thwarted by rules
of procedure to the contrary or for the sake of the convenience of
one side. This is because the Court has the bounden constitutional
duty to strike down grave abuse of
discretion whenever and wherever it is committed. Thus,
notwithstanding the interlocutory character and effect of the denial
of the demurrers to evidence, the petitioners as the accused could
avail themselves of the remedy of certiorari when the denial was
tainted with grave abuse of discretion. As we shall soon show,
the Sandiganbayan as the trial court was guilty of grave abuse of
discretion when it capriciously denied the demurrers to evidence
despite the absence of competent and sufficient evidence to sustain
the indictment for plunder, and despite the absence of the factual
bases to expect a guilty verdict.3

We reiterate the foregoing resolution, and stress that the prohibition

contained in Section 23, Rule 119 of the Rules of Court is not an insuperable
obstacle to the review by the Court of the denial of the demurrer to evidence
through certiorari. We have had many rulings to that effect in the past. For
instance, in Nicolas v. Sandiganbayan,4the Court expressly ruled that the
petition for certiorari was the proper remedy to assail the denial of the
demurrer to evidence that was tainted with grave abuse of discretion or
excess of jurisdiction, or oppressive exercise of judicial authority.

Secondly, the State submits that its right to due process was violated
because the decision imposed additional elements for plunder that neither '
Republic Act No. 7080 nor jurisprudence had theretofore required, i.e., the
identification of the main plunderer, and personal benefit on the part of the
accused committing the predicate crime of raid on the public treasury. The
State complains that it was not given the opportunity to establish such
additional elements; that the imposition of new elements fu1iher amounted
to judicial legislation in violation of the doctrine of separation of powers; that
the Court nitpicked on the different infirmities of the information despite the
issue revolving only around the sufficiency of the evidence; and that it
established all the elements of plunder beyond reasonable doubt.

The State cites the plain meaning rule to highlight that the crime of plunder
did not require personal benefit on the part of the raider of the public
treasury. It insists that the definition of raids on the public
treasury, conformably with the plain meaning rule, is the taking of public
money through fraudulent or unlawful means, and such definition does not
require enjoyment or personal benefit on the part of plunderer or on the part
of any of his co-conspirators for them to be convicted for plunder.

The submissions of the State are unfounded.

The requirements for the identification of the main plunderer and for
personal benefit in the predicate act of raids on the public treasury have
been written in R.A. No. 7080 itself as well as embedded in pertinent
jurisprudence. This we made clear in the decision, as follows:

A perusal of the information suggests that what the Prosecution sought to

show was an implied conspiracy to commit plunder among all of the accused
on the basis of their collective actions prior to, during and after the implied
agreement. It is notable that the Prosecution did not allege that the
conspiracy among all of the accused was by express agreement, or was a
wheel conspiracy or a chain conspiracy.

This was another fatal flaw of the Prosecution.

In its present version, under which the petitioners were charged, Section 2 of
Republic Act No. 7080 (Plunder Law) states:

Section 2. Definition of the Crime of Plunder: Penalties. - Any public officer

who, by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt criminal acts as described in Section 1 (d) hereof in the
aggregate amount or total value of at least Fifty million pesos
(₱50,000,000.00) shall be guilty of the crime of plunder and shall be
punished by reclusion perpetua to death. Any person who participated with
the said public officer in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances, as provided by the Revised Penal
Code, shall be considered by the court. The court shall declare any and all ill-
gotten wealth and their interests and other incomes and assets including the
properties and shares of stocks derived from the deposit or investment
thereof forfeited in favor of the State. [As Amended by Section 12, Republic
Act No. 7659 (The Death Penalty Law)]

Section l(d) of Republic Act No. 7080 provides:

Section 1. Definition of terms. - As used in this Act, the term:

xxxx

d. "Ill-gotten wealth" means any asset, property, business enterprise or

material possession of any person within the purview of Section two (2)
hereof, acquired by him directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by any combination or
series of the following means or similar schemes:

1. Through misappropriation, conversion, misuse, or malversation of public

funds or raids on the public treasury;

2. By receiving, directly or indirectly, any commission, gift, share,

percentage, kickbacks or any/or entity in connection with any government
contract or project or by reason of the office or position of the public officer
concerned;

3. By the illegal or fraudulent conveyance or disposition of assets belonging

to the National Government or any of its subdivisions, agencies or
instrumentalities or government-owned or controlled corporations and their
subsidiaries;

4. By obtaining, receiving or accepting directly or indirectly any shares of

stock, equity or any other form of interest or participation including the
promise of future employment in any business enterprise or undertaking;

5. By establishing agricultural, industrial or commercial monopolies or other

combinations and/or implementation of decrees and orders intended to
benefit particular persons or special interests; or

6. By taking undue advantage of official positi0n, authority, relationship,

connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice

The law on plunder requires that a particular public officer must be

identified as the one who amassed, acquired or accumulated ill-
gotten wealth because it plainly states that plunder is committed by
any public officer who, by himself or in connivance with members of
his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons, amasses, accumulates or
acquires ill-gotten wealth in the aggregate amount or total value of
at least ₱50,000,000.00 through a combination or series of overt
criminal acts as described in Section l(d) hereof. Surely, the law
requires in the criminal charge for plunder against several
individuals that there must be a main plunderer and her co-
conspirators, who may be members of her family, relatives by
affinity or consanguinity, business associates, subordim1tes or
other persons. In other words, the allegation of the wheel
conspiracy or express conspiracy in the information was appropriate
because the main plunderer would then be identified in either
manner. Of course, implied conspiracy could also identify the main
plunderer, but that fact must be properly alleged and duly proven
by the Prosecution.

This interpretation is supported by Estrada v. Sandiganbayan, where the

Court explained the nature of the conspiracy charge and the necessity for
the main plunderer for whose benefit the amassment, accumulation and
acquisition was made, thus:

There is no denying the fact that the "plunder of an entire nation resulting in
material damage to the national economy" is made up of a complex and
manifold network of crimes. In the crime of plunder, therefore, different
parties may be united by a common purpose. In the case at bar, the different
accused and their different criminal acts have a commonality - to help the
former President amass, accumulate or acquire ill-gotten wealth. Sub-
paragraphs (a) to (d) in the Amended Information alleged the different
participation of each accused in the conspiracy. The gravamen of the
conspiracy charge, therefore, is not that each accused agreed to receive
protection money from illegal gambling, that each misappropriated a portion
of the tobacco excise tax, that each accused ordered the GSIS and SSS to
purchase shares of Belle Corporation and receive commissions from such
sale, nor that each unjustly enriched himself from commissions, gifts and
kickbacks; rather, it is that each of them, by their individual acts,
agreed to participate, directly or indirectly, in the amassing,
accumulation and acquisition of ill-gotten wealth of and/or for
former President Estrada. 5 [bold underscoring supplied for emphasis]

Indeed, because plunder is a crime that only a public official can commit by
amassing, accumulating, or acquiring ill-gotten wealth in the aggregate
amount or total value of at least ₱50,000,000.00, the identification in the
information of such public official as the main plunderer among the several
individuals thus charged is logically necessary under the law itself. In
particular reference to Criminal Case No. SB-12-CRM-0174, the individuals
charged therein - including the petitioners - were 10 public officials; hence, it
was only proper to identify the main plunderer or plunderers among the 10
accused who herself or himself had amassed, accumulated, or acquired ill-
gotten wealth with the total value of at least ₱50,000,000.00.

The phrase raids on the public treasury as used in Section 1 (d) of R. A. No.
7080 is itself ambiguous. In order to ascertain the objective meaning of the
phrase, the act of raiding the public treasury cannot be divided into parts.
This is to differentiate the predicate act of raids on the public treasury from
other offenses involving property, like robbery, theft, or estafa. Considering
that R.A. No. 7080 does not expressly define this predicate act, the Court has
necessarily resorted to statutory construction. In so doing, the Court did not
adopt the State's submission that personal benefit on the part of the accused
need not be alleged and shown because doing so would have defeated the
clear intent of the law itself,6 which was to punish the amassing,
accumulating, or acquiring of ill-gotten wealth in the aggregate amount or
total value of at least ₱150,000,000.00 by any combination or series of acts
of misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury.

As the decision has observed, the rules of statutory construction as well as

the deliberations of Congress indicated the intent of Congress to require
personal benefit for the predicate act of raids on the public treasury, viz.:

The phrase raids on the public treasury is found in Section 1 (d) of R.A. No.
7080, which provides:

Section l .Definition of Terms. – xxx

xxxx

d) Ill-gotten wealth means any asset, prope1iy, business enterprise or

material possession of any person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by any combination or
series of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public

funds or raids on the public treasury;

xxxx

To discern the proper import of the phrase raids on the public

treasury, the key is to look at the accompanying
words: misappropriation, conversion, misuse or malversation of
public funds. This process is conformable with the maxim of
statutory construction noscitur a sociis, by which the correct
construction of a particular word or phrase that is ambiguous in
itself or is equally susceptible of various meanings may be made by
considering the company of the words in which the word or phrase
is found or with which it is associated. Verily, a word or phrase in a
statute is always used in association with other words or phrases,
and its meaning may, therefore, be modified or restricted by the
latter.

To convert connotes the act of using or disposing of another's property as if

it were one's own; to misappropriate means to own, to take something for
one's own benefit; misuse means "a good, substance, privilege, or right used
improperly, unforcsccably, or not as intended;" and malversation occurs
when "any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same or shall
take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or
property, wholly or partially." The common thread that binds all the four
terms together is that the public officer used the property taken. Considering
that raids on the public treasury is in the company of the four other terms
that require the use of the property taken, the phrase raids on the public
treasury similarly requires such use of the property taken. Accordingly,
the Sandiganbayan gravely erred in contending that the mere accumulation
and gathering constituted the forbidden act of raids on the public
treasury. Pursuant to the maxim of noscitur a sociis, raids on the public
treasury requires the raider to use the property taken impliedly for his
personal benefit.7

The Prosecution asserts that the Senate deliberations removed personal

benefit as a requirement for plunder. In not requiring personal benefit,
the Sandiganbayan quoted the following exchanges between Senator Enrile
and Senator Tafiada, viz.:

Senator Enrile. The word here, Mr. President, "such public officer or person
who conspired or knowingly benefited". One does not have to
conspire or rescheme. The only element needed is that he "knowingly
benefited". A candidate for the Senate for instance, who received a political
contribution from a plunderer, knowing that the contributor is a plunderer
and therefore, he knowingly benefited from the plunder, would he also suffer
the penalty, Mr. President, for life imprisonment?

Senator Tafiada. In the committee amendments, Mr. President, we have

deleted these lines 1 to 4 and part of line 5, on page 3. But, in a way, Mr.
President, it is good that the Gentleman is bringing out these questions, I
believe that under the examples he has given, the Court will have to...

Senator Enrile. How about the wife, Mr. President, he may not agree with the
plunderer to plunder the country but because she is a dutiful wife or a
faithful husband, she has to keep her or his vow of fidelity to the spouse.
And, of course, she enjoys the benefits out of the plunder. Would the
Gentleman now impute to her or him the crime of plunder simply because
she or he knowingly benefited out of the fruits of the plunder and, therefore,
he must suffer or he must suffer the penalty of life imprisonment?

The President. That was stricken out already in the Committee amendment.

Senator Tañada. Yes, Mr. President. Lines 1 to 4 and part of line 5 were
stricken out in the Committee amendment. But, as I said, the examples of
the Minority Floor Leader are still worth spreading the Record. And, I believe
that in those examples, the Court will have just to take into consideration all
the other circumstances prevailing in the case and the evidence that will be
submitted.

The President. In any event, 'knowingly benefited' has already been stricken
off."

The exchanges between Senator Enrile and Senator Tañada reveal, therefore,
that what was removed from the coverage of the bill and the final version
that eventually became the law was a person who was not the main
plunderer or a co-conspirator, but one who personally benefited from the
plunderers' action. The requirement of personal benefit on the part of the
main plunderer or his co-conspirators by virtue of their plunder was not
removed.

As a result, not only did the Prosecution fail to show where the money went
but, more importantly, that GMA and Aguas had personally benefited from
the same. Hence, the Prosecution did not prove the predicate act of raids on
the public treasury beyond reasonable doubt. 8

Thirdly, the State contends that the Court did not appreciate the totality of
its evidence, particularly the different irregularities committed in the
disbursement of the PCSO funds, i.e., the commingling of funds, the non-
compliance with LOI No. 1282, and the unilateral approval of the
disbursements. Such totality, coupled with the fact of the petitioners'
indispensable cooperation in the pilfering of public funds, showed the
existence of the conspiracy to commit plunder among all of the accused.

The contention lacks basis.

As can be readily seen from the decision, the Court expressly granted the
petitioners' respective demurrers to evidence and dismissed the plunder
case against them for insufficiency of evidence because:
x x x the Sandiganbayan as the trial court was guilty of grave abuse of
discretion when it capriciously denied the demurrers to evidence despite
the absence of competent and sufficient evidence to sustain the
indictment for plunder, and despite the absence of the factual bases
to expect a guilty verdict. 9

Such disposition of the Court fully took into consideration all the evidence
adduced against the petitioners. We need not rehash our review of the
evidence thus adduced, for it is enough simply to stress that the Prosecution
failed to establish the corpus delicti of plunder - that any or all of the
accused public officials, particularly petitioner Arroyo, had amassed,
accumulated, or acquired ill-gotten wealth in the aggregate amount or total
value of at least ₱50,000,000.00.

Fourthly, in accenting certain inadequacies of the allegations of the

information, the Court did not engage in purposeless nitpicking, and did not
digress from the primary task of determining the sufficiency of the evidence
presented by the State against the petitioners. What the Court thereby
intended to achieve was to highlight what would have been relevant in
the proper prosecution of plunder and thus enable itself to discern and
determine whether the evidence of guilt was sufficient or not. In fact, the
Court categorically clarified that in discussing the essential need for the
identification of the main plunderer it was not harping on the sufficiency of
the information, but was only enabling itself to search for and to find the
relevant proof that unequivocally showed petitioner Arroyo as the
"mastermind" - which was how the Sandiganbayan had characterized her
participation - in the context of the implied conspiracy alleged in the
information. But the search came to naught, for the information contained
nothing that averred her commission of the overt act necessary to implicate
her in the supposed conspiracy to commit the crime of plunder. Indeed, the
Court assiduously searched for but did not find the sufficient incriminatory
evidence against the petitioners. Hence, the Sandiganbayan capriciously and
oppressively denied their demurrers to evidence.

Fifthly, the State posits that it established at least a case for malversation
against the petitioners.

Malversation is defined and punished under Article 217 of the Revised Penal
Code, which reads thusly:

Article 217. Malversation of public funds or property; Presumption of

malversation. - Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same or shall
take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or
property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if

the amount involved in the misappropriation or malversation does not
exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the
amount involved is more than two hundred pesos but does not exceed six
thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal

in its minimum period, if the amount involved is more than six thousand
pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if

the amount involved is more than twelve thousand pesos but is less than
twenty-two thousand pesos. If the amount exceeds the latter, the penalty
shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal use. (As amended by RA 1060).

The elements of malversation are that: (a) the offender is an accountable

public officer; (b) he/she is responsible for the misappropriation of public
funds or property through intent or negligence; and (c) he/she has custody of
and received such funds and property by reason of his/her office. 10

The information in Criminal Case No. SB-12-CRM-0174 11 avers:

The undersigned Assistant Ombudsman and Graft Investigation and

Prosecution Officer III, Office of the Ombudsman, hereby accuse GLORIA
MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O. VALENCIA, MANUEL L.
MORATO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA AS.
VALDES, BENIGNO B. AGUAS, REYNALDO A. VILLAR and NILDA B. PLARAS, of
the crime of PLUNDER, as defined by, and penalized under Section 2 of
Republic Act (R.A.) No. 7080, as amended by R.A. No. 7659, committed, as
follows:

That during the period from January 2008 to June 2010 or sometime prior or
subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of
this Honorable Court, accused GLORIA MACAPAGAL-ARROYO, then the
President of the Philippines, ROSARIO C. URIARTE, then General Manager and
Vice Chairman, SERGIO 0. VALENCIA, then Chairman of the Board of
Directors, MANUEL L. MORA TO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO,
MA. FATIMA AS. VALDES, then members of the Board of Directors, BENIGNO
B. AGUAS, then Budget and Accounts Manager, all of the Philippine Charity
Sweepstakes Office (PCSO), REYNALDO A. VILLAR, then Chairman, and NILDA
B. PLARAS, then Head of Intelligence/Confidential Fund Fraud Audit Unit, both
of the Commission on Audit, all public officers committing the offense in
relation to their respective offices and taking undue advantage of their
respective official positions, authority, relationships, connections or
influence, conniving, conspiring and confederating with one another, did
then and there willfully, unlawfully and criminally 'amass,, accumulate and/or
acquire directly or indirectly, ill-gotten wealth in the aggregate amount or
total value of THREE HUNDRED SIXTY FIVE MILLION NINE HUNDRED NINETY
SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS (PHP365,997,915.00),
more or less, through any or a combination or a series of overt or criminal
acts, or similar schemes or means, described as follows:

(a) diverting in several instances, funds from the operating budget of PCSO
to its Confidential/Intelligence Fund that could be accessed and withdrawn at
any time with minimal restrictions, and converting, misusing, and/or illegally
conveying or transferring the proceeds drawn from said fund in the
aforementioned sum, also in several instances, to themselves, in the guise of
fictitious expenditures, for their personal gain and benefit;

(b) raiding the public treasury by withdrawing and receiving, in several

instances, the above-mentioned amount from the Confidential/Intelligence
Fund from PCSO's accounts, and or unlawfully transferring or conveying the
same into their possession and control through irregularly issued
disbursement vouchers and fictitious expenditures; and

(c) taking advantage of their respective official positions, authority,

relationships, connections or influence, in several instances, to unjustly
enrich themselves in the aforementioned sum, at the expense of, and the
damage and prejudice of the Filipino people and the Republic of the
Philippines.

CONTRARY TO LAW.

In thereby averring the predicate act of malversation, the State did not
sufficiently allege the aforementioned essential elements of malversation in
the information. The omission from the information of factual details
descriptive of the aforementioned elements of malversation highlighted the
insufficiency of the allegations. Consequently, the State's position is entirely
unfounded.

Lastly, the petitioners insist that the consideration and granting of the
motion for reconsideration of the State can amount to a violation of the
constitutional prohibition against double jeopardy because their acquittal
under the decision was a prior jeopardy within the context of Section 21,
Article III (Bill of Rights) of the 1987 Constitution, to wit:

Section 21. No person shall be twice put in jeopardy of punishment for the
same offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the
same act.

The insistence of the petitioners is fully warranted. Indeed, the consideration

and granting of the motion for reconsideration of the State will amount to the
violation of the constitutional guarantee against double jeopardy.

The Court's consequential dismissal of Criminal Case No. SB-12- CRM-0174

as to the petitioners for insufficiency of evidence amounted to
their acquittal of the crime of plunder charged against them. In People v.
Tan, 12the Court shows why:

In People v. Sandiganbayan, this Com1 explained the general rule that the
grant of a demurrer to evidence operates as an acquittal and is, thus, final
and unappealable, to wit:

The demurrer to evidence in criminal cases, such as the one at bar,

is ''filed after tile prosecution had rested its case," and when the
same is granted, it calls "for an appreciation of the evidence
adduced by the prosecution and its sufficiency to warrant conviction
beyond reasonable doubt, resulting in a dismissal of the case on the
merits, tantamount to an acquittal of the accused." Such dismissal
of a criminal case by the grant of demurrer to evidence may not be
appealed, for to do so would be to place the accused in double
jeopardy. The verdict being one of acquittal, the case ends there.

xxxx

The rule on double jeopardy, however, is not without exceptions. In People v.

Laguio, Jr., this Court stated that the only instance when double jeopardy will
not attach is when the RTC acted with grave abuse of discretion, thus:

... The only instance when double ,jeopardy will not attach is when the trial
court acted with grave abuse of discretion amounting to lack or excess of
jurisdiction, such as where the prosecution was denied the opportunity to
present its case or where the trial was a sham. However, while certiorari may
be availed of to correct an erroneous acquittal, the petitioner in such an
extraordinary proceeding must clearly demonstrate that the trial court
blatantly abused its authority to a point so grave as to deprive it of its very
power to dispense justice. 13

The constitutional prohibition against placing a person under double jeopardy

for the same offense bars not only a new and independent prosecution but
also an appeal in the same action after jeopardy had attached. 14 As such,
every acquittal becomes final immediately upon promulgation and cannot be
recalled for correction or amendment. With the acquittal being immediately
final, granting the State's motion for reconsideration in this case would
violate the Constitutional prohibition against double jeopardy because it
would effectively reopen the prosecution and subject the petitioners to a
second jeopardy despite their acquittal.

It is cogent to remind in this regard that the Constitutional prohibition against

double jeopardy provides to the accused three related protections,
specifically: protection against a second prosecution for the same offense
after acquittal; protection against a second prosecution for the same offense
after conviction; and protection against multiple punishments for the same
offense. 15The rationale for the three protections is expounded in United
States v. Wilson: 16

The interests underlying these three protections arc quite similar.

When a defendant has been once convicted and punished for a
particular crime, principles of fairness and finality require that he
not be subjected to the possibility of further punishment by being
again tried or sentenced for the same offense. Ex pa rte Lange, 18 Wall
163 (1874); In re Nielsen, 131 U.S. 176 (1889). When a defendant has
been acquitted of an offense, the Clause guarantees that the State
shall not be permitted to make repeated attempts to convict him,

"thereby subjecting him to embarrassment, expense and ordeal, and

compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that, even though
innocent, he may be found guilty."

Green v. United States, 355 U.S. 184, 187-188 (1957).

The policy of avoiding multiple trials has been regarded as so

important that exceptions to the principle have been only
grudgingly allowed. Initially, a new trial was thought to be
unavailable after appeal, whether requested by the prosecution or
the defendant. See United States v. Gibert, 25 F. Cas. 1287 (No. 15,204)
(CCD Mass. 1834) (Story, J.). It was not until 1896 that it was made
clear that a defendant could seek a new trial after conviction, even
though the Government enjoyed no similar right. United States v.
Ball, 163 U.S. 662. (Bold underscoring supplied for emphasis)

WHEREFORE, the Court DENIES the motion for reconsideration for lack of
merit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

I join J. Leonen’s Dissent

MARIA LOURDES P.A. SERENO
Chief Justice

I join J. Leonen's Dissent

PRESBITERO J. VELASCO, JR.
ANTONIO T. CARPIO
Associate Justice
Associate Justice

TERESITA J. LEONARDO-DE
DIOSDADO M. PERALTA
CASTRO
Associate Justice
Associate Justice

MARIANO C. DEL CASTILLO JOSE CATRAL MENDOZA

 Associate Justice Associate Justice

Please see concurring and

Dissenting opinion in the main
BIENVENIDO L. REYES
case
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice

I dissent. See separate opinion

FRANCIS H. JARDELEZA
MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice

I join the dissent of J. Leonen

ALFREDO BENJAMIN S,. SAMUEL R. MARTIREZ
CAGUIOA Associate Justice
Associate Justice

NOEL G. TIJAM
Associate Justice

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division
Chairperson’s Attestation, I certify that the conclusions in the above
Resolution had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

Rollo (G.R. No. 220953), Vol. III, p. 1866.

1

Rollo (G.R. No. 220598), Vol. VI, pp. 4158- 4159.

2

3
Rollo (G.R. No. 220953), Vol. III, pp. 1846-1847; bold underscoring is
supplied for emphasis.

G.R. Nos. 175930-31, February 11, 2008, 544 SCRA 324, 336.
4
5
Rollo (G.R. No. 220593). Vol. III, pp. 1851-1854.
6
See Garcia v. Social Security Commission Legal and Collection, G.R. No.
170735, December 17, 2007, 540 SCRA 456, 472.
7
Bold underscoring is added for emphasis.
8
Rollo (G.R. No. 220953), Vol. 111, pp. 1863-1865.
9
Id. at 1847.
10
Regalado, Criminal Law Conspectus, 1st Edition, 2000, National Book
Store, Inc., p. 424.
11
Rollo (G.R. No. 220598), Vol. I, pp. 305-307-A.
12
G.R. No. 167526, July 26, 2010, 625 SCRA 388.
13
Id. at 395-397 (bold underscoring supplied for emphasis).
14
Republic v. Court of Appeals, No. L-41115, September 11, 1982, 116 SCRA
505, 556; People v. Pomeroy, 97 Phil 927 (1955); People v. Bringas, 70 Phil
528; People v. Yelo, 83 Phil. 618.
15
North Carolina v. Pearce, 395 US 711, 717 (1969).
16
420 US 332, 343 (1975).

G.R. No. 135385 December 6, 2000

ISAGANI CRUZ and CESAR EUROPA, petitioners,

vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES,
SECRETARY OF BUDGET AND MANAGEMENT and CHAIRMAN and
COMMISSIONERS OF THE NATIONAL COMMISSION ON INDIGENOUS
PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI
ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO WANDAG, EVELYN
DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, LIBERATO A. GABIN,
MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI KIRAM-CONNIE
SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG-
ANTONIO D. LUMANDONG, DATU MANTUMUKAW TEOFISTO
SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU
RAMON BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO,
TIMUAY EDWIN B. ENDING, DATU SAHAMPONG MALANAW VI, DATU
BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY DAYA-
MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN,
DATU MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW-CRISPEN
SAWAY, VICKY MAKAY, LOURDES D. AMOS, GILBERT P. HOGGANG,
TERESA GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON,
ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE CARANTES,
LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR S. BUGNAY,
CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN,
VIRGILIO CAYETANO, CONCHITA G. DESCAGA, LEVY ESTEVES, ODETTE
G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO VALONES, PEPE H.
ATONG, OFELIA T. DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL,
MANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN, RAFFY
MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO H.
MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY, ROEL S.
MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY, HERMINIA
S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB,
SALVADOR TIONGSON, VENANCIO APANG, MADION MALID, SUKIM
MALID, NENENG MALID, MANGKATADONG AUGUSTO DIANO,
JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL, FELAY
DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY
SALNUNGAN, ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO
SALIGA, SR., JERSON P. GERADA, RENATO T. BAGON, JR., SARING
MASALONG, SOLEDAD M. GERARDA, ELIZABETH L. MENDI, MORANTE
S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL MALID,
represented by her father CORNELIO MALID, MARCELINO M. LADRA,
represented by her father MONICO D. LADRA, JENNYLYN MALID,
represented by her father TONY MALID, ARIEL M. EVANGELISTA,
represented by her mother LINAY BALBUENA, EDWARD M. EMUY,
SR., SUSAN BOLANIO, OND, PULA BATO B'LAAN TRIBAL FARMER'S
ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC. and GREEN FORUM-
WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE
CONSERVATION OF NATURAL RESOURCES, INC., intervenor.

RESOLUTION

PER CURIAM:

Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition
and mandamus as citizens and taxpayers, assailing the constitutionality of
certain provisions of Republic Act No. 8371 (R.A. 8371), otherwise known as
the Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules
and Regulations (Implementing Rules).

In its resolution of September 29, 1998, the Court required respondents to

comment.1 In compliance, respondents Chairperson and Commissioners of
the National Commission on Indigenous Peoples (NCIP), the government
agency created under the IPRA to implement its provisions, filed on October
13, 1998 their Comment to the Petition, in which they defend the
constitutionality of the IPRA and pray that the petition be dismissed for lack
of merit.

On October 19, 1998, respondents Secretary of the Department of

Environment and Natural Resources (DENR) and Secretary of the Department
of Budget and Management (DBM) filed through the Solicitor General a
consolidated Comment. The Solicitor General is of the view that the IPRA is
partly unconstitutional on the ground that it grants ownership over natural
resources to indigenous peoples and prays that the petition be granted in
part.

On November 10, 1998, a group of intervenors, composed of Sen. Juan

Flavier, one of the authors of the IPRA, Mr. Ponciano Bennagen, a member of
the 1986 Constitutional Commission, and the leaders and members of 112
groups of indigenous peoples (Flavier, et. al), filed their Motion for Leave to
Intervene. They join the NCIP in defending the constitutionality of IPRA and
praying for the dismissal of the petition.

On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a
Motion to Intervene and/or to Appear as Amicus Curiae. The CHR asserts that
IPRA is an expression of the principle of parens patriae and that the State has
the responsibility to protect and guarantee the rights of those who are at a
serious disadvantage like indigenous peoples. For this reason it prays that
the petition be dismissed.

On March 23, 1999, another group, composed of the Ikalahan Indigenous

People and the Haribon Foundation for the Conservation of Natural
Resources, Inc. (Haribon, et al.), filed a motion to Intervene with attached
Comment-in-Intervention. They agree with the NCIP and Flavier, et al. that
IPRA is consistent with the Constitution and pray that the petition for
prohibition and mandamus be dismissed.

The motions for intervention of the aforesaid groups and organizations were
granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties and
intervenors filed their respective memoranda in which they reiterate the
arguments adduced in their earlier pleadings and during the hearing.

Petitioners assail the constitutionality of the following provisions of the IPRA

and its Implementing Rules on the ground that they amount to an unlawful
deprivation of the State’s ownership over lands of the public domain as well
as minerals and other natural resources therein, in violation of the regalian
doctrine embodied in Section 2, Article XII of the Constitution:

"(1) Section 3(a) which defines the extent and coverage of ancestral
domains, and Section 3(b) which, in turn, defines ancestral lands;

"(2) Section 5, in relation to section 3(a), which provides that ancestral

domains including inalienable public lands, bodies of water, mineral and
other resources found within ancestral domains are private but community
property of the indigenous peoples;

"(3) Section 6 in relation to section 3(a) and 3(b) which defines the
composition of ancestral domains and ancestral lands;

"(4) Section 7 which recognizes and enumerates the rights of the indigenous
peoples over the ancestral domains;

(5) Section 8 which recognizes and enumerates the rights of the indigenous
peoples over the ancestral lands;

"(6) Section 57 which provides for priority rights of the indigenous peoples in
the harvesting, extraction, development or exploration of minerals and other
natural resources within the areas claimed to be their ancestral domains, and
the right to enter into agreements with nonindigenous peoples for the
development and utilization of natural resources therein for a period not
exceeding 25 years, renewable for not more than 25 years; and

"(7) Section 58 which gives the indigenous peoples the responsibility to

maintain, develop, protect and conserve the ancestral domains and portions
thereof which are found to be necessary for critical watersheds, mangroves,
wildlife sanctuaries, wilderness, protected areas, forest cover or
reforestation."2

Petitioners also content that, by providing for an all-encompassing definition

of "ancestral domains" and "ancestral lands" which might even include
private lands found within said areas, Sections 3(a) and 3(b) violate the
rights of private landowners.3
In addition, petitioners question the provisions of the IPRA defining the
powers and jurisdiction of the NCIP and making customary law applicable to
the settlement of disputes involving ancestral domains and ancestral lands
on the ground that these provisions violate the due process clause of the
Constitution.4

These provisions are:

"(1) sections 51 to 53 and 59 which detail the process of delineation and

recognition of ancestral domains and which vest on the NCIP the sole
authority to delineate ancestral domains and ancestral lands;

"(2) Section 52[i] which provides that upon certification by the NCIP that a
particular area is an ancestral domain and upon notification to the following
officials, namely, the Secretary of Environment and Natural Resources,
Secretary of Interior and Local Governments, Secretary of Justice and
Commissioner of the National Development Corporation, the jurisdiction of
said officials over said area terminates;

"(3) Section 63 which provides the customary law, traditions and practices of
indigenous peoples shall be applied first with respect to property rights,
claims of ownership, hereditary succession and settlement of land disputes,
and that any doubt or ambiguity in the interpretation thereof shall be
resolved in favor of the indigenous peoples;

"(4) Section 65 which states that customary laws and practices shall be used
to resolve disputes involving indigenous peoples; and

"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and
disputes involving rights of the indigenous peoples." 5

Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP
Administrative Order No. 1, series of 1998, which provides that "the
administrative relationship of the NCIP to the Office of the President is
characterized as a lateral but autonomous relationship for purposes of policy
and program coordination." They contend that said Rule infringes upon the
President’s power of control over executive departments under Section 17,
Article VII of the Constitution.6

Petitioners pray for the following:

"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66
and other related provisions of R.A. 8371 are unconstitutional and invalid;
"(2) The issuance of a writ of prohibition directing the Chairperson and
Commissioners of the NCIP to cease and desist from implementing the
assailed provisions of R.A. 8371 and its Implementing Rules;

"(3) The issuance of a writ of prohibition directing the Secretary of the

Department of Environment and Natural Resources to cease and desist from
implementing Department of Environment and Natural Resources Circular
No. 2, series of 1998;

"(4) The issuance of a writ of prohibition directing the Secretary of Budget

and Management to cease and desist from disbursing public funds for the
implementation of the assailed provisions of R.A. 8371; and

"(5) The issuance of a writ of mandamus commanding the Secretary of

Environment and Natural Resources to comply with his duty of carrying out
the State’s constitutional mandate to control and supervise the exploration,
development, utilization and conservation of Philippine natural resources." 7

After due deliberation on the petition, the members of the Court voted as
follows:

Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion,
which the Chief Justice and Justices Bellosillo, Quisumbing, and Santiago join,
sustaining the validity of the challenged provisions of R.A. 8371. Justice Puno
also filed a separate opinion sustaining all challenged provisions of the law
with the exception of Section 1, Part II, Rule III of NCIP Administrative Order
No. 1, series of 1998, the Rules and Regulations Implementing the IPRA, and
Section 57 of the IPRA which he contends should be interpreted as dealing
with the large-scale exploitation of natural resources and should be read in
conjunction with Section 2, Article XII of the 1987 Constitution. On the other
hand, Justice Mendoza voted to dismiss the petition solely on the ground that
it does not raise a justiciable controversy and petitioners do not have
standing to question the constitutionality of R.A. 8371.

Seven (7) other members of the Court voted to grant the petition. Justice
Panganiban filed a separate opinion expressing the view that Sections 3 (a)
(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are unconstitutional.
He reserves judgment on the constitutionality of Sections 58, 59, 65, and 66
of the law, which he believes must await the filing of specific cases by those
whose rights may have been violated by the IPRA. Justice Vitug also filed a
separate opinion expressing the view that Sections 3(a), 7, and 57 of R.A.
8371 are unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and
De Leon join in the separate opinions of Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was
not obtained, the case was redeliberated upon. However, after
redeliberation, the voting remained the same. Accordingly, pursuant to Rule
56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.

Attached hereto and made integral parts thereof are the separate opinions of
Justices Puno, Vitug, Kapunan, Mendoza, and Panganiban.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes,

Ynares-Santiago, and De Leon, Jr., JJ., concur.
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion

Footnotes
1
Rollo, p. 114.
2
Petition, Rollo, pp. 16-23.
3
Id. at 23-25.
4
Section 1, Article III of the Constitution states: "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."
5
Rollo, pp. 25-27.
6
Id. at 27-28.
7
Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp.
5-6.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

PUNO, J.:

PRECIS
A classic essay on the utility of history was written in 1874 by Friedrich
Nietzsche entitled "On the Uses and Disadvantages of History for Life."
Expounding on Nietzsche's essay, Judge Richard Posner 1 wrote:2

"Law is the most historically oriented, or if you like the most backward-
looking, the most 'past-dependent,' of the professions. It venerates tradition,
precedent, pedigree, ritual, custom, ancient practices, ancient texts, archaic
terminology, maturity, wisdom, seniority, gerontocracy, and interpretation
conceived of as a method of recovering history. It is suspicious of innovation,
discontinuities, 'paradigm shifts,' and the energy and brashness of youth.
These ingrained attitudes are obstacles to anyone who wants to re-orient law
in a more pragmatic direction. But, by the same token, pragmatic
jurisprudence must come to terms with history."

When Congress enacted the Indigenous Peoples Rights Act (IPRA), it

introduced radical concepts into the Philippine legal system which appear to
collide with settled constitutional and jural precepts on state ownership of
land and other natural resources. The sense and subtleties of this law cannot
be appreciated without considering its distinct sociology and the labyrinths of
its history. This Opinion attempts to interpret IPRA by discovering its soul
shrouded by the mist of our history. After all, the IPRA was enacted by
Congress not only to fulfill the constitutional mandate of protecting the
indigenous cultural communities' right to their ancestral land but more
importantly, to correct a grave historical injustice to our indigenous
people.

This Opinion discusses the following:

I. The Development of the Regalian Doctrine in the Philippine Legal System.

A. The Laws of the Indies

B. Valenton v. Murciano

C. The Public Land Acts and the Torrens System

D. The Philippine Constitutions

II. The Indigenous Peoples Rights Act (IPRA).

A. Indigenous Peoples

1. Indigenous Peoples: Their History

2. Their Concept of Land

III. The IPRA is a Novel Piece of Legislation.

A. Legislative History

IV. The Provisions of the IPRA Do Not Contravene the Constitution.

A. Ancestral domains and ancestral lands are the private property of

indigenous peoples and do not constitute part of the land of the public
domain.

1. The right to ancestral domains and ancestral lands: how acquired

2. The concept of native title

(a) Cariño v. Insular Government

(b) Indian Title to land

(c) Why the Cariño doctrine is unique

3. The option of securing a torrens title to the ancestral land

B. The right of ownership and possession by the ICCs/IPs to their ancestral

domains is a limited form of ownership and does not include the right to
alienate the same.

1. The indigenous concept of ownership and customary law

C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian
Doctrine enshrined in Section 2, Article XII of the 1987 Constitution.

1. The rights of ICCs/IPs over their ancestral domains and lands

2. The right of ICCs/IPs to develop lands and natural resources within the
ancestral domains does not deprive the State of ownership over the natural
resources, control and supervision in their development and exploitation.

(a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the
parameters of Section 7(a) of the law on ownership of ancestral domains and
is ultra vires.

(b) The small-scale utilization of natural resources in Section 7 (b) of the IPRA
is allowed under Paragraph 3, Section 2, Article XII of the 1987 Consitution.

(c) The large-scale utilization of natural resources in Section 57 of the IPRA

may be harmonized with Paragraphs 1 and 4, Section 2, Article XII of the
1987 Constitution.
V. The IPRA is a Recognition of Our Active Participation in the International
Indigenous Movement.

DISCUSSION

I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL

SYSTEM.

A. The Laws of the Indies

The capacity of the State to own or acquire property is the state's power
of dominium.3 This was the foundation for the early Spanish decrees
embracing the feudal theory of jura regalia. The "Regalian Doctrine" or jura
regalia is a Western legal concept that was first introduced by the
Spaniards into the country through the Laws of the Indies and the
Royal Cedulas. The Laws of the Indies, i.e., more specifically, Law 14, Title
12, Book 4 of the Novisima Recopilacion de Leyes de las Indias, set the policy
of the Spanish Crown with respect to the Philippine Islands in the following
manner:

"We, having acquired full sovereignty over the Indies, and all lands,
territories, and possessions not heretofore ceded away by our royal
predecessors, or by us, or in our name, still pertaining to the royal crown and
patrimony, it is our will that all lands which are held without proper and true
deeds of grant be restored to us as they belong to us, in order that after
reserving before all what to us or to our viceroys, audiencias, and governors
may seem necessary for public squares, ways, pastures, and commons in
those places which are peopled, taking into consideration not only their
present condition, but also their future and their probable increase, and after
distributing to the natives what may be necessary for tillage and pasturage,
confirming them in what they now have and giving them more if necessary,
all the rest of said lands may remain free and unencumbered for us to
dispose of as we may wish.

We therefore order and command that all viceroys and presidents of pretorial
courts designate at such time as shall to them seem most expedient, a
suitable period within which all possessors of tracts, farms, plantations, and
estates shall exhibit to them and to the court officers appointed by them for
this purpose, their title deeds thereto. And those who are in possession by
virtue of proper deeds and receipts, or by virtue of just prescriptive right
shall be protected, and all the rest shall be restored to us to be disposed of at
our will."4
The Philippines passed to Spain by virtue of "discovery" and conquest.
Consequently, all lands became the exclusive patrimony and dominion of the
Spanish Crown. The Spanish Government took charge of distributing the
lands by issuing royal grants and concessions to Spaniards, both military and
civilian.5 Private land titles could only be acquired from the government
either by purchase or by the various modes of land grant from the Crown. 6

The Laws of the Indies were followed by the Ley Hipotecaria, or the
Mortgage Law of 1893.7 The Spanish Mortgage Law provided for the
systematic registration of titles and deeds as well as possessory claims. The
law sought to register and tax lands pursuant to the Royal Decree of 1880.
The Royal Decree of 1894, or the "Maura Law," was partly an amendment of
the Mortgage Law as well as the Laws of the Indies, as already amended by
previous orders and decrees.8 This was the last Spanish land law
promulgated in the Philippines. It required the "adjustment" or registration of
all agricultural lands, otherwise the lands shall revert to the state.

Four years later, by the Treaty of Paris of December 10, 1898, Spain
ceded to the government of the United States all rights, interests and claims
over the national territory of the Philippine Islands. In 1903, the United
States colonial government, through the Philippine Commission, passed Act
No. 926, the first Public Land Act.

B. Valenton v. Murciano

In 1904, under the American regime, this Court decided the case
of Valenton v. Murciano.9

Valenton resolved the question of which is the better basis for ownership of
land: long-time occupation or paper title. Plaintiffs had entered into peaceful
occupation of the subject land in 1860. Defendant's predecessor-in-interest,
on the other hand, purchased the land from the provincial treasurer of Tarlac
in 1892. The lower court ruled against the plaintiffs on the ground that they
had lost all rights to the land by not objecting to the administrative sale.
Plaintiffs appealed the judgment, asserting that their 30-year adverse
possession, as an extraordinary period of prescription in the Partidas and
the Civil Code, had given them title to the land as against everyone,
including the State; and that the State, not owning the land, could not validly
transmit it.

The Court, speaking through Justice Willard, decided the case on the basis of
"those special laws which from earliest time have regulated the disposition of
the public lands in the colonies."10 The question posed by the Court was: "Did
these special laws recognize any right of prescription as against the State as
to these lands; and if so, to what extent was it recognized?"

Prior to 1880, the Court said, there were no laws specifically providing for the
disposition of land in the Philippines. However, it was understood that in the
absence of any special law to govern a specific colony, the Laws of the Indies
would be followed. Indeed, in the Royal Order of July 5, 1862, it was decreed
that until regulations on the subject could be prepared, the authorities of the
Philippine Islands should follow strictly the Laws of the Indies,
the Ordenanza of the Intendentes of 1786, and the Royal Cedula of
1754.11

Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de
Leyes de las Indias, the court interpreted it as follows:

"In the preamble of this law there is, as is seen, a distinct statement that all
those lands belong to the Crown which have not been granted by Philip, or in
his name, or by the kings who preceded him. This statement excludes the
idea that there might be lands not so granted, that did not belong
to the king. It excludes the idea that the king was not still the owner
of all ungranted lands, because some private person had been in the
adverse occupation of them. By the mandatory part of the law all the
occupants of the public lands are required to produce before the authorities
named, and within a time to be fixed by them, their title papers. And those
who had good title or showed prescription were to be protected in their
holdings. It is apparent that it was not the intention of the law that mere
possession for a length of time should make the possessors the owners of
the land possessed by them without any action on the part of the
authorities."12

The preamble stated that all those lands which had not been granted by
Philip, or in his name, or by the kings who preceded him, belonged to the
Crown.13 For those lands granted by the king, the decree provided for a
system of assignment of such lands. It also ordered that all possessors of
agricultural land should exhibit their title deed, otherwise, the land would be
restored to the Crown.14

The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it
ordered the Crown's principal subdelegate to issue a general order directing
the publication of the Crown's instructions:

"x x x to the end that any and all persons who, since the year 1700, and up
to the date of the promulgation and publication of said order, shall have
occupied royal lands, whether or not x x x cultivated or tenanted, may x x x
appear and exhibit to said subdelegates the titles and patents by virtue of
which said lands are occupied. x x x. Said subdelegates will at the same time
warn the parties interested that in case of their failure to present their title
deeds within the term designated, without a just and valid reason therefor,
they will be deprived of and evicted from their lands, and they will be
granted to others."15

On June 25, 1880, the Crown adopted regulations for the adjustment of lands
"wrongfully occupied" by private individuals in the Philippine
Islands. Valenton construed these regulations together with
contemporaneous legislative and executive interpretations of the law, and
concluded that plaintiffs' case fared no better under the 1880 decree and
other laws which followed it, than it did under the earlier ones. Thus as a
general doctrine, the Court stated:

"While the State has always recognized the right of the occupant to a deed if
he proves a possession for a sufficient length of time, yet it has always
insisted that he must make that proof before the proper
administrative officers, and obtain from them his deed, and until he
did that the State remained the absolute owner."16

In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no
law in force in these Islands by which the plaintiffs could obtain the
ownership of these lands by prescription, without any action by the
State."17 Valenton had no rights other than those which accrued to mere
possession. Murciano, on the other hand, was deemed to be the owner of the
land by virtue of the grant by the provincial secretary. In effect, Valenton
upheld the Spanish concept of state ownership of public land.

As a fitting observation, the Court added that "[t]he policy pursued by the
Spanish Government from earliest times, requiring settlers on the
public lands to obtain title deeds therefor from the State, has been
continued by the American Government in Act No. 926."18

C. The Public Land Acts and the Torrens System

Act No. 926, the first Public Land Act, was passed in pursuance of the
provisions of the the Philippine Bill of 1902. The law governed the disposition
of lands of the public domain. It prescribed rules and regulations for the
homesteading, selling, and leasing of portions of the public domain of the
Philippine Islands, and prescribed the terms and conditions to enable persons
to perfect their titles to public lands in the Islands. It also provided for the
"issuance of patents to certain native settlers upon public lands," for the
establishment of town sites and sale of lots therein, for the completion of
imperfect titles, and for the cancellation or confirmation of Spanish
concessions and grants in the Islands." In short, the Public Land Act operated
on the assumption that title to public lands in the Philippine Islands remained
in the government;19 and that the government's title to public land sprung
from the Treaty of Paris and other subsequent treaties between Spain and
the United States.20 The term "public land" referred to all lands of the public
domain whose title still remained in the government and are thrown open to
private appropriation and settlement,21 and excluded the patrimonial
property of the government and the friar lands.22

Act No. 926 was superseded in 1919 by Act 2874, the second Public
Land Act. This new law was passed under the Jones Law. It was more
comprehensive in scope but limited the exploitation of agricultural lands to
Filipinos and Americans and citizens of other countries which gave Filipinos
the same privileges.23 After the passage of the 1935 Constitution, Act 2874
was amended in 1936 by Commonwealth Act No. 141. Commonwealth Act
No. 141 remains the present Public Land Law and it is essentially the same
as Act 2874. The main difference between the two relates to the transitory
provisions on the rights of American citizens and corporations during the
Commonwealth period at par with Filipino citizens and corporations. 24

Grants of public land were brought under the operation of the

Torrens system under Act 496, or the Land Registration Law of
1903. Enacted by the Philippine Commission, Act 496 placed all public and
private lands in the Philippines under the Torrens system. The law is said to
be almost a verbatim copy of the Massachussetts Land Registration Act of
1898,25 which, in turn, followed the principles and procedure of the Torrens
system of registration formulated by Sir Robert Torrens who patterned it after
the Merchant Shipping Acts in South Australia. The Torrens system requires
that the government issue an official certificate of title attesting to the fact
that the person named is the owner of the property described therein,
subject to such liens and encumbrances as thereon noted or the law
warrants or reserves.26 The certificate of title is indefeasible and
imprescriptible and all claims to the parcel of land are quieted upon issuance
of said certificate. This system highly facilitates land conveyance and
negotiation.27

D. The Philippine Constitutions

The Regalian doctrine was enshrined in the 1935 Constitution. One of the
fixed and dominating objectives of the 1935 Constitutional Convention was
the nationalization and conservation of the natural resources of the
country.28 There was an overwhelming sentiment in the Convention in
favor of the principle of state ownership of natural resources and
the adoption of the Regalian doctrine.29 State ownership of natural
resources was seen as a necessary starting point to secure recognition of the
state's power to control their disposition, exploitation, development, or
utilization.30 The delegates to the Constitutional Convention very well knew
that the concept of State ownership of land and natural resources was
introduced by the Spaniards, however, they were not certain whether it was
continued and applied by the Americans. To remove all doubts, the
Convention approved the provision in the Constitution affirming the Regalian
doctrine.31

Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation

and Utilization of Natural Resources," reads as follows:

"Sec. 1. All agricultural, timber, and mineral lands of the public

domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the
Philippines, or to corporations or associations at least sixty per
centum of the capital of which is owned by such citizens, subject to
any existing right, grant, lease, or concession at the time of the
inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land,
shall not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources shall
be granted for a period exceeding twenty-five years, except as to water
rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the
measure and the limit of the grant."

The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article

XIV on the "National Economy and the Patrimony of the Nation," to wit:

"Sec. 8. All lands of the public domain, waters, minerals, coal,

petroleum and other mineral oils, all forces of potential energy,
fisheries, wildlife, and other natural resources of the Philippines
belong to the State. With the exception of agricultural, industrial or
commercial, residential, and resettlement lands of the public
domain, natural resources shall not be alienated, and no license,
concession, or lease for the exploration, development, exploitation,
or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for not more than
twenty-five years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and the limit of the grant."

The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of

Article XII on "National Economy and Patrimony," to wit:

"Sec. 2. All lands of the public domain, waters, minerals, coal,

petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated.
The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State. The
State may directly undertake such activities or it may enter into co-
production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such agreements
may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be
provided by law. In cases of water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.

x x x."

Simply stated, all lands of the public domain as well as all natural
resources enumerated therein, whether on public or private land, belong to
the State. It is this concept of State ownership that petitioners claim
is being violated by the IPRA.

II. THE INDIGENOUS PEOPLES RIGHTS ACT.

Republic Act No. 8371 is entitled "An Act to Recognize, Protect and
Promote the Rights of Indigenous Cultural Communities/ Indigenous Peoples,
Creating a National Commission on Indigenous Peoples, Establishing
Implementing Mechanisms, Appropriating Funds Therefor, and for Other
Purposes." It is simply known as "The Indigenous Peoples Rights Act
of 1997" or the IPRA.

The IPRA recognizes the existence of the indigenous cultural communities

or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It
grants these people the ownership and possession of their ancestral
domains and ancestral lands, and defines the extent of these lands
and domains. The ownership given is the indigenous concept of
ownership under customary law which traces its origin to native
title.

Other rights are also granted the ICCs/IPs, and these are:

- the right to develop lands and natural resources;

- the right to stay in the territories;

- the right in case of displacement;

- the right to safe and clean air and water;

- the right to claim parts of reservations;

- the right to resolve conflict;32

- the right to ancestral lands which include

a. the right to transfer land/property to/among members of the same

ICCs/IPs, subject to customary laws and traditions of the community
concerned;

b. the right to redemption for a period not exceeding 15 years from date of
transfer, if the transfer is to a non-member of the ICC/IP and is tainted by
vitiated consent of the ICC/IP, or if the transfer is for an unconscionable
consideration.33

Within their ancestral domains and ancestral lands, the ICCs/IPs are given
the right to self-governance and empowerment,34 social justice and human
rights,35 the right to preserve and protect their culture, traditions, institutions
and community intellectual rights, and the right to develop their own
sciences and technologies.36

To carry out the policies of the Act, the law created the National Commission
on Indigenous Peoples (NCIP). The NCIP is an independent agency under the
Office of the President and is composed of seven (7) Commissioners
belonging to ICCs/IPs from each of the ethnographic areas- Region I and the
Cordilleras; Region II; the rest of Luzon; Island groups including Mindoro,
Palawan, Romblon, Panay and the rest of the Visayas; Northern and Western
Mindanao; Southern and Eastern Mindanao; and Central Mindanao. 37 The
NCIP took over the functions of the Office for Northern Cultural Communities
and the Office for Southern Cultural Communities created by former
President Corazon Aquino which were merged under a revitalized structure. 38

Disputes involving ICCs/IPs are to be resolved under customary laws

and practices. When still unresolved, the matter may be brought to the
NCIP, which is granted quasi-judicial powers. 39 The NCIP's decisions may be
appealed to the Court of Appeals by a petition for review.

Any person who violates any of the provisions of the Act such as, but not
limited to, unauthorized and/or unlawful intrusion upon ancestral lands and
domains shall be punished in accordance with customary laws or imprisoned
from 9 months to 12 years and/or fined from ₱100,000.00 to ₱500,000.00
and obliged to pay damages.40

A. Indigenous Peoples

The IPRA is a law dealing with a specific group of people, i.e., the Indigenous
Cultural Communities (ICCs) or the Indigenous Peoples (IPs). The term "ICCs"
is used in the 1987 Constitution while that of "IPs" is the contemporary
international language in the International Labor Organization (ILO)
Convention 16941 and the United Nations (UN) Draft Declaration on the
Rights of Indigenous Peoples.42

ICCs/IPs are defined by the IPRA as:

"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer to a

group of people or homogeneous societies identified by self-ascription and
ascription by others, who have continuously lived as organized community
on communally bounded and defined territory, and who have, under claims
of ownership since time immemorial, occupied, possessed and utilized such
territories, sharing common bonds of language, customs, traditions and other
distinctive cultural traits, or who have, through resistance to political, social
and cultural inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the majority of Filipinos. ICCs/IPs shall
likewise include peoples who are regarded as indigenous on account of their
descent from the populations which inhabited the country, at the time of
conquest or colonization, or at the time of inroads of non-indigenous religions
and cultures, or the establishment of present state boundaries, who retain
some or all of their own social, economic, cultural and political institutions,
but who may have been displaced from their traditional domains or who may
have resettled outside their ancestral domains."

Indigenous Cultural Communities or Indigenous Peoples refer to a

group of people or homogeneous societies who have continuously
lived as an organized community on communally bounded and
defined territory. These groups of people have actually occupied,
possessed and utilized their territories under claim of ownership since time
immemorial. They share common bonds of language, customs, traditions and
other distinctive cultural traits, or, they, by their resistance to political, social
and cultural inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the Filipino majority. ICCs/IPs also
include descendants of ICCs/IPs who inhabited the country at the time of
conquest or colonization, who retain some or all of their own social,
economic, cultural and political institutions but who may have been
displaced from their traditional territories or who may have resettled outside
their ancestral domains.

1. Indigenous Peoples: Their History

Presently, Philippine indigenous peoples inhabit the interiors and mountains

of Luzon, Mindanao, Mindoro, Negros, Samar, Leyte, and the Palawan and
Sulu group of islands. They are composed of 110 tribes and are as follows:

1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, Bontoc, Tinggian or

Itneg, Ifugao, Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos
Norte and Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino and
Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan;
Ivatan of Batanes, Aeta of Cagayan, Quirino and Isabela.

2. In Region III- Aetas.

3. In Region IV- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal,

Quezon; Alangan or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya
of Oriental and Occidental Mindoro; Tadyawan of Occidental Mindoro;
Cuyonon, Palawanon, Tagbanua and Tao't bato of Palawan.

4. In Region V- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan,

Isarog, and Kabihug of Camarines Norte; Agta, and Mayon of Camarines Sur;
Itom of Albay, Cimaron of Sorsogon; and the Pullon of Masbate and
Camarines Sur.

5. In Region VI- Ati of Negros Occidental, Iloilo and Antique, Capiz; the
Magahat of Negros Occidental; the Corolano and Sulod.
6. In Region VII- Magahat of Negros Oriental and Eskaya of Bohol.

7. In Region IX- the Badjao numbering about 192,000 in Tawi-Tawi,

Zamboanga del Sur; the Kalibugan of Basilan, the Samal, Subanon and Yakat.

8. Region X- Numbering 1.6 million in Region X alone, the IPs are: the
Banwaon, Bukidnon, Matigsalog, Talaanding of Bukidnon; the Camiguin of
Camiguin Island; the Higa-unon of Agusan del Norte, Agusan del Sur,
Bukidnon and Misamis Occidental; the Tigwahanon of Agusan del Sur,
Misamis Oriental and and Misamis Occidental, the Manobo of the Agusan
provinces, and the Umayamnon of Agusan and Bukidnon.

9. In Region XI- There are about 1,774,065 IPs in Region XI. They are tribes of
the Dibabaon, Mansaka of Davao del Norte; B'laan, Kalagan, Langilad, T'boli
and Talaingod of Davao del Sur; Mamamanua of Surigao del Sur; Mandaya of
the Surigao provinces and Davao Oriental; Manobo Blit of South Cotabato;
the Mangguangon of Davao and South Cotabato; Matigsalog of Davao del
Norte and Del Sur; Tagakaolo, Tasaday and Ubo of South Cotabato; and
Bagobo of Davao del sur and South Cotabato.

10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, Tausug,

Yakan/Samal, and Iranon.43

How these indigenous peoples came to live in the Philippines goes

back to as early as 25,000 to 30,000 B.C.

Before the time of Western contact, the Philippine archipelago was

peopled largely by the Negritos, Indonesians and Malays. 44 The strains from
these groups eventually gave rise to common cultural features which
became the dominant influence in ethnic reformulation in the archipelago.
Influences from the Chinese and Indian civilizations in the third or fourth
millenium B.C. augmented these ethnic strains. Chinese economic and socio-
cultural influences came by way of Chinese porcelain, silk and traders. Indian
influence found their way into the religious-cultural aspect of pre-colonial
society.45

The ancient Filipinos settled beside bodies of water. Hunting and food
gathering became supplementary activities as reliance on them was reduced
by fishing and the cultivation of the soil. 46 From the hinterland, coastal, and
riverine communities, our ancestors evolved an essentially homogeneous
culture, a basically common way of life where nature was a primary
factor. Community life throughout the archipelago was influenced by, and
responded to, common ecology. The generally benign tropical climate and
the largely uniform flora and fauna favored similarities, not differences. 47 Life
was essentially subsistence but not harsh. 48

The early Filipinos had a culture that was basically Malayan in structure
and form. They had languages that traced their origin to the Austronesian
parent-stock and used them not only as media of daily communication but
also as vehicles for the expression of their literary moods. 49 They fashioned
concepts and beliefs about the world that they could not see, but which they
sensed to be part of their lives.50 They had their own religion and religious
beliefs. They believed in the immortality of the soul and life after death. Their
rituals were based on beliefs in a ranking deity whom they called Bathalang
Maykapal, and a host of other deities, in the environmental spirits and in soul
spirits. The early Filipinos adored the sun, the moon, the animals and birds,
for they seemed to consider the objects of Nature as something to be
respected. They venerated almost any object that was close to their daily
life, indicating the importance of the relationship between man and the
object of nature.51

The unit of government was the "barangay," a term that derived its meaning
from the Malay word "balangay," meaning, a boat, which transported them
to these shores.52 The barangay was basically a family-based community and
consisted of thirty to one hundred families. Each barangay was different and
ruled by a chieftain called a "dato." It was the chieftain's duty to rule and
govern his subjects and promote their welfare and interests. A chieftain had
wide powers for he exercised all the functions of government. He was the
executive, legislator and judge and was the supreme commander in time of
war.53

Laws were either customary or written. Customary laws were

handed down orally from generation to generation and constituted
the bulk of the laws of the barangay. They were preserved in songs and
chants and in the memory of the elder persons in the community. 54 The
written laws were those that the chieftain and his elders promulgated from
time to time as the necessity arose.55 The oldest known written body of laws
was the Maragtas Code by Datu Sumakwel at about 1250 A.D. Other old
codes are the Muslim Code of Luwaran and the Principal Code of
Sulu.56 Whether customary or written, the laws dealt with various subjects,
such as inheritance, divorce, usury, loans, partnership, crime and
punishment, property rights, family relations and adoption. Whenever
disputes arose, these were decided peacefully through a court composed by
the chieftain as "judge" and the barangay elders as "jury." Conflicts arising
between subjects of different barangays were resolved by arbitration in
which a board composed of elders from neutral barangays acted as
arbiters.57

Baranganic society had a distinguishing feature: the absence of

private property in land. The chiefs merely administered the lands in the
name of the barangay. The social order was an extension of the family with
chiefs embodying the higher unity of the community. Each individual,
therefore, participated in the community ownership of the soil and the
instruments of production as a member of the barangay. 58 This ancient
communalism was practiced in accordance with the concept of mutual
sharing of resources so that no individual, regardless of status, was without
sustenance. Ownership of land was non-existent or unimportant and
the right of usufruct was what regulated the development of
lands.59 Marine resources and fishing grounds were likewise free to all.
Coastal communities depended for their economic welfare on the kind of
fishing sharing concept similar to those in land communities. 60 Recognized
leaders, such as the chieftains and elders, by virtue of their positions of
importance, enjoyed some economic privileges and benefits. But their rights,
related to either land and sea, were subject to their responsibility to protect
the communities from danger and to provide them with the leadership and
means of survival.61

Sometime in the 13th century, Islam was introduced to the

archipelago in Maguindanao. The Sultanate of Sulu was established and
claimed jurisdiction over territorial areas represented today by Tawi-tawi,
Sulu, Palawan, Basilan and Zamboanga. Four ethnic groups were within this
jurisdiction: Sama, Tausug, Yakan and Subanon. 62 The Sultanate of
Maguindanao spread out from Cotabato toward Maranao territory, now Lanao
del Norte and Lanao del Sur.63

The Muslim societies evolved an Asiatic form of feudalism where

land was still held in common but was private in use. This is clearly
indicated in the Muslim Code of Luwaran. The Code contains a provision on
the lease of cultivated lands. It, however, has no provision for the acquisition,
transfer, cession or sale of land.64

The societies encountered by Magellan and Legaspi therefore were

primitive economies where most production was geared to the use of the
producers and to the fulfillment of kinship obligations. They were not
economies geared to exchange and profit.65 Moreover, the family basis of
barangay membership as well as of leadership and governance worked to
splinter the population of the islands into numerous small and separate
communities.66

When the Spaniards settled permanently in the Philippines in 1565,

they found the Filipinos living in barangay settlements scattered
along water routes and river banks. One of the first tasks imposed on
the missionaries and the encomenderos was to collect all scattered Filipinos
together in a reduccion.67 As early as 1551, the Spanish government
assumed an unvarying solicitous attitude towards the natives. 68 The
Spaniards regarded it a sacred "duty to conscience and humanity to civilize
these less fortunate people living in the obscurity of ignorance" and to
accord them the "moral and material advantages" of community life and the
"protection and vigilance afforded them by the same laws." 69

The Spanish missionaries were ordered to establish pueblos where the

church and convent would be constructed. All the new Christian converts
were required to construct their houses around the church and the
unbaptized were invited to do the same.70 With the reduccion, the Spaniards
attempted to "tame" the reluctant Filipinos through Christian indoctrination
using the convento/casa real/plaza complex as focal point. The reduccion, to
the Spaniards, was a "civilizing" device to make the Filipinos law-abiding
citizens of the Spanish Crown, and in the long run, to make them ultimately
adopt Hispanic culture and civilization. 71

All lands lost by the old barangays in the process of pueblo

organization as well as all lands not assigned to them and the
pueblos, were now declared to be crown lands or realengas,
belonging to the Spanish king. It was from the realengas that land
grants were made to non-Filipinos.72

The abrogation of the Filipinos' ancestral rights in land and the

introduction of the concept of public domain were the most
immediate fundamental results of Spanish colonial theory and
law.73 The concept that the Spanish king was the owner of
everything of value in the Indies or colonies was imposed on the
natives, and the natives were stripped of their ancestral rights to
land.74

Increasing their foothold in the Philippines, the Spanish colonialists, civil and
religious, classified the Filipinos according to their religious practices and
beliefs, and divided them into three types . First were the Indios, the
Christianized Filipinos, who generally came from the lowland populations.
Second, were the Moros or the Muslim communities, and third, were
the infieles or the indigenous communities.75

The Indio was a product of the advent of Spanish culture. This class was
favored by the Spaniards and was allowed certain status although below the
Spaniards. The Moros and infieles were regarded as the lowest classes.76

The Moros and infieles resisted Spanish rule and Christianity. The
Moros were driven from Manila and the Visayas to Mindanao; while the
infieles, to the hinterlands. The Spaniards did not pursue them into the
deep interior. The upland societies were naturally outside the immediate
concern of Spanish interest, and the cliffs and forests of the hinterlands were
difficult and inaccessible, allowing the infieles, in effect, relative
security.77 Thus, the infieles, which were peripheral to colonial
administration, were not only able to preserve their own culture but also
thwarted the Christianization process, separating themselves from the newly
evolved Christian community.78 Their own political, economic and social
systems were kept constantly alive and vibrant.

The pro-Christian or pro-Indio attitude of colonialism brought about a

generally mutual feeling of suspicion, fear, and hostility between the
Christians on the one hand and the non-Christians on the other. Colonialism
tended to divide and rule an otherwise culturally and historically related
populace through a colonial system that exploited both the virtues and vices
of the Filipinos.79

President McKinley, in his instructions to the Philippine Commission

of April 7, 1900, addressed the existence of the infieles:

"In dealing with the uncivilized tribes of the Islands, the Commission
should adopt the same course followed by Congress in permitting
the tribes of our North American Indians to maintain their tribal
organization and government, and under which many of those tribes are
now living in peace and contentment, surrounded by civilization to which
they are unable or unwilling to conform. Such tribal government should,
however, be subjected to wise and firm regulation; and, without undue or
petty interference, constant and active effort should be exercised to prevent
barbarous practices and introduce civilized customs." 80

Placed in an alternative of either letting the natives alone or guiding them in

the path of civilization, the American government chose "to adopt the latter
measure as one more in accord with humanity and with the national
conscience."81
The Americans classified the Filipinos into two: the Christian
Filipinos and the non-Christian Filipinos. The term "non-Christian"
referred not to religious belief, but to a geographical area, and more directly,
"to natives of the Philippine Islands of a low grade of civilization, usually
living in tribal relationship apart from settled communities." 82

Like the Spaniards, the Americans pursued a policy of assimilation.

In 1903, they passed Act No. 253 creating the Bureau of Non-Christian
Tribes (BNCT). Under the Department of the Interior, the BNCT's primary
task was to conduct ethnographic research among unhispanized Filipinos,
including those in Muslim Mindanao, with a "special view to determining the
most practicable means for bringing about their advancement in civilization
and prosperity." The BNCT was modeled after the bureau dealing with
American Indians. The agency took a keen anthropological interest in
Philippine cultural minorities and produced a wealth of valuable materials
about them.83

The 1935 Constitution did not carry any policy on the non-Christian
Filipinos. The raging issue then was the conservation of the national
patrimony for the Filipinos.

In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to

effectuate in a more rapid and complete manner the economic, social, moral
and political advancement of the non-Christian Filipinos or national cultural
minorities and to render real, complete, and permanent the integration of all
said national cultural minorities into the body politic, creating
the Commission on National Integration charged with said functions."
The law called for a policy of integration of indigenous peoples into the
Philippine mainstream and for this purpose created the Commission on
National Integration (CNI).84 The CNI was given, more or less, the same
task as the BNCT during the American regime. The post-independence
policy of integration was like the colonial policy of assimilation
understood in the context of a guardian-ward relationship.85

The policy of assimilation and integration did not yield the desired
result. Like the Spaniards and Americans, government attempts at
integration met with fierce resistance. Since World War II, a tidal wave
of Christian settlers from the lowlands of Luzon and the Visayas swamped
the highlands and wide open spaces in Mindanao. 86 Knowledge by the
settlers of the Public Land Acts and the Torrens system resulted in
the titling of several ancestral lands in the settlers' names. With
government initiative and participation, this titling displaced
several indigenous peoples from their lands. Worse, these peoples
were also displaced by projects undertaken by the national government in
the name of national development.87

It was in the 1973 Constitution that the State adopted the following
provision:

"The State shall consider the customs, traditions, beliefs, and interests of
national cultural communities in the formulation and implementation of State
policies."88

For the first time in Philippine history, the "non-Christian tribes" or

the "cultural minorities" were addressed by the highest law of the
Republic, and they were referred to as "cultural communities." More
importantly this time, their "uncivilized" culture was given some recognition
and their "customs, traditions, beliefs and interests" were to be considered
by the State in the formulation and implementation of State
policies. President Marcos abolished the CNI and transferred its functions
to the Presidential Adviser on National Minorities
(PANAMIN). The PANAMIN was tasked to integrate the ethnic groups that
sought full integration into the larger community, and at the same time
"protect the rights of those who wish to preserve their original lifeways
beside the larger community."89 In short, while still adopting the
integration policy, the decree recognized the right of tribal Filipinos
to preserve their way of life.90

In 1974, President Marcos promulgated P.D. No. 410, otherwise known as

the Ancestral Lands Decree. The decree provided for the issuance of land
occupancy certificates to members of the national cultural communities who
were given up to 1984 to register their claims.91 In 1979, the Commission
on the Settlement of Land Problems was created under E.O. No. 561
which provided a mechanism for the expeditious resolution of land problems
involving small settlers, landowners, and tribal Filipinos. 92

Despite the promulgation of these laws, from 1974 to the early 1980's, some
100,000 Kalingas and Bontoks of the Cordillera region were displaced by the
Chico River dam project of the National Power Corporation (NPC). The
Manobos of Bukidnon saw their land bulldozed by the Bukidnon Sugar
Industries Company (BUSCO). In Agusan del Sur, the National Development
Company was authorized by law in 1979 to take approximately 40,550
hectares of land that later became the NDC-Guthrie plantation in Agusan del
Sur. Most of the land was possessed by the Agusan natives. 93 Timber
concessions, water projects, plantations, mining, and cattle ranching and
other projects of the national government led not only to the eviction of the
indigenous peoples from their land but also to the reduction and destruction
of their natural environment.94

The Aquino government signified a total shift from the policy of

integration to one of preservation. Invoking her powers under the
Freedom Constitution, President Aquino created the Office of Muslim
Affairs, Office for Northern Cultural Communities and the Office for
Southern Cultural Communities all under the Office of the
President.95

The 1987 Constitution carries at least six (6) provisions which insure
the right of tribal Filipinos to preserve their way of life.96 This
Constitution goes further than the 1973 Constitution by expressly
guaranteeing the rights of tribal Filipinos to their ancestral domains
and ancestral lands. By recognizing their right to their ancestral
lands and domains, the State has effectively upheld their right to
live in a culture distinctly their own.

2. Their Concept of Land

Indigenous peoples share distinctive traits that set them apart from the
Filipino mainstream. They are non-Christians. They live in less accessible,
marginal, mostly upland areas. They have a system of self-government not
dependent upon the laws of the central administration of the Republic of the
Philippines. They follow ways of life and customs that are perceived as
different from those of the rest of the population. 97 The kind of response the
indigenous peoples chose to deal with colonial threat worked well to their
advantage by making it difficult for Western concepts and religion to erode
their customs and traditions. The "infieles societies" which had become
peripheral to colonial administration, represented, from a cultural
perspective, a much older base of archipelagic culture. The political systems
were still structured on the patriarchal and kinship oriented arrangement of
power and authority. The economic activities were governed by the concepts
of an ancient communalism and mutual help. The social structure which
emphasized division of labor and distinction of functions, not status, was
maintained. The cultural styles and forms of life portraying the varieties of
social courtesies and ecological adjustments were kept constantly vibrant. 98

Land is the central element of the indigenous peoples'

existence. There is no traditional concept of permanent, individual, land
ownership. Among the Igorots, ownership of land more accurately applies to
the tribal right to use the land or to territorial control. The people are the
secondary owners or stewards of the land and that if a member of the tribe
ceases to work, he loses his claim of ownership, and the land reverts to the
beings of the spirit world who are its true and primary owners. Under the
concept of "trusteeship," the right to possess the land does not only belong
to the present generation but the future ones as well. 99

Customary law on land rests on the traditional belief that no one owns the
land except the gods and spirits, and that those who work the land are its
mere stewards.100 Customary law has a strong preference for
communal ownership, which could either be ownership by a group of
individuals or families who are related by blood or by marriage, 101 or
ownership by residents of the same locality who may not be related by blood
or marriage. The system of communal ownership under customary laws
draws its meaning from the subsistence and highly collectivized mode of
economic production. The Kalingas, for instance, who are engaged in team
occupation like hunting, foraging for forest products, and swidden farming
found it natural that forest areas, swidden farms, orchards, pasture and
burial grounds should be communally-owned. 102 For the Kalingas, everybody
has a common right to a common economic base. Thus, as a rule, rights and
obligations to the land are shared in common.

Although highly bent on communal ownership, customary law on

land also sanctions individual ownership. The residential lots and
terrace rice farms are governed by a limited system of individual
ownership. It is limited because while the individual owner has the right to
use and dispose of the property, he does not possess all the rights of an
exclusive and full owner as defined under our Civil Code. 103 Under Kalinga
customary law, the alienation of individually-owned land is strongly
discouraged except in marriage and succession and except to meet sudden
financial needs due to sickness, death in the family, or loss of
crops.104 Moreover, and to be alienated should first be offered to a clan-
member before any village-member can purchase it, and in no case may
land be sold to a non-member of the ili.105

Land titles do not exist in the indigenous peoples' economic and

social system. The concept of individual land ownership under the
civil law is alien to them. Inherently colonial in origin, our national
land laws and governmental policies frown upon indigenous claims
to ancestral lands. Communal ownership is looked upon as inferior,
if not inexistent.106

III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.

A. The Legislative History of the IPRA

It was to address the centuries-old neglect of the Philippine

indigenous peoples that the Tenth Congress of the Philippines, by their
joint efforts, passed and approved R.A. No. 8371, the Indigenous
Peoples Rights Act (IPRA) of 1997. The law was a consolidation of two
Bills- Senate Bill No. 1728 and House Bill No. 9125.

Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No.

1728 was a consolidation of four proposed measures referred to the
Committees on Cultural Communities, Environment and Natural Resources,
Ways and Means, as well as Finance. It adopted almost en toto the
comprehensive version of Senate Bill Nos. 1476 and 1486 which was a result
of six regional consultations and one national consultation with
indigenous peoples nationwide.108 At the Second Regular Session of the
Tenth Congress, Senator Flavier, in his sponsorship speech, gave a
background on the situation of indigenous peoples in the Philippines, to wit:

"The Indigenous Cultural Communities, including the Bangsa Moro, have long
suffered from the dominance and neglect of government controlled by the
majority. Massive migration of their Christian brothers to their homeland
shrunk their territory and many of the tribal Filipinos were pushed to the
hinterlands. Resisting the intrusion, dispossessed of their ancestral land and
with the massive exploitation of their natural resources by the elite among
the migrant population, they became marginalized. And the government has
been an indispensable party to this insidious conspiracy against the
Indigenous Cultural Communities (ICCs). It organized and supported the
resettlement of people to their ancestral land, which was massive during the
Commonwealth and early years of the Philippine Republic. Pursuant to the
Regalian Doctrine first introduced to our system by Spain through the Royal
Decree of 13 February 1894 or the Maura Law, the government passed laws
to legitimize the wholesale landgrabbing and provide for easy titling or grant
of lands to migrant homesteaders within the traditional areas of the ICCs." 109

Senator Flavier further declared:

"The IPs are the offsprings and heirs of the peoples who have first inhabited
and cared for the land long before any central government was established.
Their ancestors had territories over which they ruled themselves and related
with other tribes. These territories- the land- include people, their dwelling,
the mountains, the water, the air, plants, forest and the animals. This is their
environment in its totality. Their existence as indigenous peoples is
manifested in their own lives through political, economic, socio-cultural and
spiritual practices. The IPs culture is the living and irrefutable proof to this.

Their survival depends on securing or acquiring land rights; asserting their

rights to it; and depending on it. Otherwise, IPs shall cease to exist as distinct
peoples."110

To recognize the rights of the indigenous peoples effectively, Senator Flavier

proposed a bill based on two postulates: (1) the concept of native title; and
(2) the principle of parens patriae.

According to Senator Flavier, "[w]hile our legal tradition subscribes to the

Regalian Doctrine reinstated in Section 2, Article XII of the 1987
Constitution," our "decisional laws" and jurisprudence passed by the State
have "made exception to the doctrine." This exception was first laid
down in the case of Cariño v. Insular Government where:

"x x x the court has recognized long occupancy of land by an indigenous

member of the cultural communities as one of private ownership, which, in
legal concept, is termed "native title." This ruling has not been overturned. In
fact, it was affirmed in subsequent cases."111

Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. No. 141,
P.D. 705, P.D. 410, P.D. 1529, R.A. 6734 (the Organic Act for the Autonomous
Region of Muslim Mindanao). These laws, explicitly or implicitly, and liberally
or restrictively, recognized "native title" or "private right" and the existence
of ancestral lands and domains. Despite the passage of these laws, however,
Senator Flavier continued:

"x x x the executive department of government since the American

occupation has not implemented the policy. In fact, it was more honored in
its breach than in its observance, its wanton disregard shown during the
period unto the Commonwealth and the early years of the Philippine Republic
when government organized and supported massive resettlement of the
people to the land of the ICCs."

Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and
possess their ancestral land. The bill was prepared also under the principle
of parens patriae inherent in the supreme power of the State and deeply
embedded in Philippine legal tradition. This principle mandates that persons
suffering from serious disadvantage or handicap, which places them in a
position of actual inequality in their relation or transaction with others, are
entitled to the protection of the State.

Senate Bill No. 1728 was passed on Third Reading by twenty-one

(21) Senators voting in favor and none against, with no
abstention.112

House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the
Committee on Cultural Communities. It was originally authored and
subsequently presented and defended on the floor by Rep. Gregorio
Andolana of North Cotabato.113

Rep. Andolana's sponsorhip speech reads as follows:

"This Representation, as early as in the 8th Congress, filed a bill of similar

implications that would promote, recognize the rights of indigenous cultural
communities within the framework of national unity and development.

Apart from this, Mr. Speaker, is our obligation, the government's obligation to
assure and ascertain that these rights shall be well-preserved and the
cultural traditions as well as the indigenous laws that remained long before
this Republic was established shall be preserved and promoted. There is a
need, Mr. Speaker, to look into these matters seriously and early approval of
the substitute bill shall bring into reality the aspirations, the hope and the
dreams of more than 12 million Filipinos that they be considered in the
mainstream of the Philippine society as we fashion for the year 2000." 114

Rep. Andolana stressed that H.B. No. 9125 is based on the policy of
preservation as mandated in the Constitution. He also emphasized that the
rights of IPs to their land was enunciated in Cariño v. Insular
Government which recognized the fact that they had vested rights prior to
the establishment of the Spanish and American regimes. 115

After exhaustive interpellation, House Bill No. 9125, and its

corresponding amendments, was approved on Second Reading with
no objections.

IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE

CONSTITUTION.
A. Ancestral Domains and Ancestral Lands are the Private Property
of Indigenous Peoples and Do Not Constitute Part of the Land of the
Public Domain.

The IPRA grants to ICCs/IPs a distinct kind of ownership over

ancestral domains and ancestral lands. Ancestral lands are not the
same as ancestral domains. These are defined in Section 3 [a] and [b] of the
Indigenous Peoples Right Act, viz:

"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to all

areas generally belonging to ICCs/IPs comprising lands, inland waters,
coastal areas, and natural resources therein, held under a claim of
ownership, occupied or possessed by ICCs/IPs by themselves or through their
ancestors, communally or individually since time immemorial, continuously
to the present except when interrupted by war, force majeure or
displacement by force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings entered into by government and
private individuals/corporations, and which are necessary to ensure their
economic, social and cultural welfare. It shall include ancestral lands, forests,
pasture, residential, agricultural, and other lands individually owned whether
alienable and disposable or otherwise, hunting grounds, burial grounds,
worship areas, bodies of water, mineral and other natural resources, and
lands which may no longer be exclusively occupied by ICCs/IPs but from
which they traditionally had access to for their subsistence and traditional
activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators;

b) Ancestral Lands.- Subject to Section 56 hereof, refers to land occupied,

possessed and utilized by individuals, families and clans who are members of
the ICCs/IPs since time immemorial, by themselves or through their
predecessors-in-interest, under claims of individual or traditional group
ownership, continuously, to the present except when interrupted by war,
force majeure or displacement by force, deceit, stealth, or as a consequence
of government projects and other voluntary dealings entered into by
government and private individuals/corporations, including, but not limited
to, residential lots, rice terraces or paddies, private forests, swidden farms
and tree lots."

Ancestral domains are all areas belonging to ICCs/IPs held under a claim of
ownership, occupied or possessed by ICCs/IPs by themselves or through their
ancestors, communally or individually since time immemorial, continuously
until the present, except when interrupted by war, force majeure or
displacement by force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings with government and/or private
individuals or corporations. Ancestral domains comprise lands, inland
waters, coastal areas, and natural resources therein and includes
ancestral lands, forests, pasture, residential, agricultural, and other
lands individually owned whether alienable or not, hunting grounds,
burial grounds, worship areas, bodies of water, mineral and other
natural resources. They also include lands which may no longer be
exclusively occupied by ICCs/IPs but from which they traditionally had access
to for their subsistence and traditional activities, particularly the home
ranges of ICCs/IPs who are still nomadic and/or shifting cultivators. 116

Ancestral lands are lands held by the ICCs/IPs under the same conditions
as ancestral domains except that these are limited to lands and that these
lands are not merely occupied and possessed but are also utilized by the
ICCs/IPs under claims of individual or traditional group ownership. These
lands include but are not limited to residential lots, rice terraces or paddies,
private forests, swidden farms and tree lots.117

The procedures for claiming ancestral domains and lands are similar to the
procedures embodied in Department Administrative Order (DAO) No. 2,
series of 1993, signed by then Secretary of the Department of Environment
and Natural Resources (DENR) Angel Alcala.118 DAO No. 2 allowed the
delineation of ancestral domains by special task forces and ensured the
issuance of Certificates of Ancestral Land Claims (CALC's) and Certificates of
Ancestral Domain Claims (CADC's) to IPs.

The identification and delineation of these ancestral domains and lands is a

power conferred by the IPRA on the National Commission on Indigenous
Peoples (NCIP).119 The guiding principle in identification and delineation is
self-delineation.120 This means that the ICCs/IPs have a decisive role in
determining the boundaries of their domains and in all the activities
pertinent thereto.121

The procedure for the delineation and recognition of ancestral domains is

set forth in Sections 51 and 52 of the IPRA. The identification, delineation and
certification of ancestral lands is in Section 53 of said law.

Upon due application and compliance with the procedure provided under the
law and upon finding by the NCIP that the application is meritorious, the NCIP
shall issue a Certificate of Ancestral Domain Title (CADT) in the name of the
community concerned.122 The allocation of lands within the ancestral
domain to any individual or indigenous corporate (family or clan) claimants
is left to the ICCs/IPs concerned to decide in accordance with customs and
traditions.123 With respect to ancestral lands outside the ancestral
domain, the NCIP issues a Certificate of Ancestral Land Title (CALT). 124

CADT's and CALT's issued under the IPRA shall be registered by the NCIP
before the Register of Deeds in the place where the property is situated. 125

(1) Right to Ancestral Domains and Ancestral Lands: How Acquired

The rights of the ICCs/IPs to their ancestral domains and ancestral lands may
be acquired in two modes: (1) by native title over both ancestral lands
and domains; or (2) by torrens title under the Public Land Act and
the Land Registration Act with respect to ancestral lands only.

(2) The Concept of Native Title

Native title is defined as:

"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and domains
which, as far back as memory reaches, have been held under a claim
of private ownership by ICCs/IPs, have never been public lands and are
thus indisputably presumed to have been held that way since before the
Spanish Conquest."126

Native title refers to ICCs/IPs' preconquest rights to lands and domains held
under a claim of private ownership as far back as memory reaches. These
lands are deemed never to have been public lands and are indisputably
presumed to have been held that way since before the Spanish Conquest.
The rights of ICCs/IPs to their ancestral domains (which also include
ancestral lands) by virtue of native title shall be recognized and
respected.127 Formal recognition, when solicited by ICCs/IPs concerned, shall
be embodied in a Certificate of Ancestral Domain Title (CADT), which shall
recognize the title of the concerned ICCs/IPs over the territories identified
and delineated.128

Like a torrens title, a CADT is evidence of private ownership of land by native

title. Native title, however, is a right of private ownership peculiarly granted
to ICCs/IPs over their ancestral lands and domains. The IPRA categorically
declares ancestral lands and domains held by native title as never to have
been public land. Domains and lands held under native title are, therefore,
indisputably presumed to have never been public lands and are private.

(a) Cariño v. Insular Government129

The concept of native title in the IPRA was taken from the 1909 case
of Cariño v. Insular Government.130 Cariño firmly established a concept of
private land title that existed irrespective of any royal grant from the State.

In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the land
registration court 146 hectares of land in Baguio Municipality, Benguet
Province. He claimed that this land had been possessed and occupied by his
ancestors since time immemorial; that his grandfather built fences around
the property for the holding of cattle and that his father cultivated some
parts of the land. Cariño inherited the land in accordance with Igorot custom.
He tried to have the land adjusted under the Spanish land laws, but no
document issued from the Spanish Crown.131 In 1901, Cariño obtained a
possessory title to the land under the Spanish Mortgage Law. 132 The North
American colonial government, however, ignored his possessory title and
built a public road on the land prompting him to seek a Torrens title to his
property in the land registration court. While his petition was pending, a U.S.
military reservation133 was proclaimed over his land and, shortly thereafter, a
military detachment was detailed on the property with orders to keep cattle
and trespassers, including Cariño, off the land. 134

In 1904, the land registration court granted Cariño's application for absolute
ownership to the land. Both the Government of the Philippine Islands and the
U.S. Government appealed to the C.F.I. of Benguet which reversed the land
registration court and dismissed Cariño's application. The Philippine Supreme
Court135 affirmed the C.F.I. by applying the Valenton ruling. Cariño took the
case to the U.S. Supreme Court.136 On one hand, the Philippine government
invoked the Regalian doctrine and contended that Cariño failed to comply
with the provisions of the Royal Decree of June 25, 1880, which required
registration of land claims within a limited period of time. Cariño, on the
other, asserted that he was the absolute owner of the land jure gentium, and
that the land never formed part of the public domain.

In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S.

Supreme Court held:

"It is true that Spain, in its earlier decrees, embodied the universal feudal
theory that all lands were held from the Crown, and perhaps the general
attitude of conquering nations toward people not recognized as entitled to
the treatment accorded to those in the same zone of civilization with
themselves. It is true, also, that in legal theory, sovereignty is absolute, and
that, as against foreign nations, the United States may assert, as Spain
asserted, absolute power. But it does not follow that, as against the
inhabitants of the Philippines, the United States asserts that Spain had such
power. When theory is left on one side, sovereignty is a question of strength,
and may vary in degree. How far a new sovereign shall insist upon the
theoretical relation of the subjects to the head in the past, and how far it
shall recognize actual facts, are matters for it to decide." 137

The U.S. Supreme Court noted that it need not accept Spanish doctrines. The
choice was with the new colonizer. Ultimately, the matter had to be decided
under U.S. law.

The Cariño decision largely rested on the North American constitutionalist's

concept of "due process" as well as the pronounced policy "to do justice to
the natives."138 It was based on the strong mandate extended to the Islands
via the Philippine Bill of 1902 that "No law shall be enacted in said islands
which shall deprive any person of life, liberty, or property without due
process of law, or deny to any person therein the equal protection of the
laws." The court declared:

"The acquisition of the Philippines was not like the settlement of the white
race in the United States. Whatever consideration may have been shown to
the North American Indians, the dominant purpose of the whites in America
was to occupy land. It is obvious that, however stated, the reason for our
taking over the Philippines was different. No one, we suppose, would deny
that, so far as consistent with paramount necessities, our first object in the
internal administration of the islands is to do justice to the natives, not to
exploit their country for private gain. By the Organic Act of July 1, 1902,
chapter 1369, section 12 (32 Statutes at Large, 691), all the property and
rights acquired there by the United States are to be administered 'for the
benefit of the inhabitants thereof.' It is reasonable to suppose that the
attitude thus assumed by the United States with regard to what was
unquestionably its own is also its attitude in deciding what it will claim for its
own. The same statute made a bill of rights, embodying the safeguards of
the Constitution, and, like the Constitution, extends those safeguards to all. It
provides that 'no law shall be enacted in said islands which shall deprive any
person of life, liberty, or property without due process of law, or deny to any
person therein the equal protection of the laws.' In the light of the
declaration that we have quoted from section 12, it is hard to believe that
the United States was ready to declare in the next breath that "any person"
did not embrace the inhabitants of Benguet, or that it meant by "property"
only that which had become such by ceremonies of which presumably a
large part of the inhabitants never had heard, and that it proposed to treat as
public land what they, by native custom and by long association,- of the
profoundest factors in human thought,- regarded as their own." 139

The Court went further:

"Every presumption is and ought to be against the government in a case like

the present. It might, perhaps, be proper and sufficient to say that
when, as far back as testimony or memory goes, the land has been
held by individuals under a claim of private ownership, it will be
presumed to have been held in the same way from before the
Spanish conquest, and never to have been public land. Certainly in a
case like this, if there is doubt or ambiguity in the Spanish law, we ought to
give the applicant the benefit of the doubt."140

The court thus laid down the presumption of a certain title held (1) as far
back as testimony or memory went, and (2) under a claim of private
ownership. Land held by this title is presumed to "never have been public
land."

Against this presumption, the U.S. Supreme Court analyzed the Spanish
decrees upheld in the 1904 decision of Valenton v. Murciano. The U.S.
Supreme Court found no proof that the Spanish decrees did not honor native
title. On the contrary, the decrees discussed in Valenton appeared to
recognize that the natives owned some land, irrespective of any royal grant.
The Regalian doctrine declared in the preamble of the Recopilacion was all
"theory and discourse" and it was observed that titles were admitted to exist
beyond the powers of the Crown, viz:

"If the applicant's case is to be tried by the law of Spain, we do not

discover such clear proof that it was bad by that law as to satisfy us
that he does not own the land. To begin with, the older decrees and
laws cited by the counsel for the plaintiff in error seem to indicate
pretty clearly that the natives were recognized as owning some
lands, irrespective of any royal grant. In other words, Spain did not
assume to convert all the native inhabitants of the Philippines into
trespassers or even into tenants at will. For instance, Book 4, title 12, Law 14
of the the Recopilacion de Leyes de las Indias, cited for a contrary conclusion
in Valenton v. Murciano, 3 Philippine 537, while it commands viceroys and
others, when it seems proper, to call for the exhibition of grants, directs
them to confirm those who hold by good grants or justa prescripcion. It is
true that it begins by the characteristic assertion of feudal
overlordship and the origin of all titles in the King or his
predecessors. That was theory and discourse. The fact was that
titles were admitted to exist that owed nothing to the powers of
Spain beyond this recognition in their books." (Emphasis supplied).141

The court further stated that the Spanish "adjustment" proceedings never
held sway over unconquered territories. The wording of the Spanish laws
were not framed in a manner as to convey to the natives that failure to
register what to them has always been their own would mean loss of such
land. The registration requirement was "not to confer title, but simply to
establish it;" it was "not calculated to convey to the mind of an Igorot chief
the notion that ancient family possessions were in danger, if he had read
every word of it."

By recognizing this kind of title, the court clearly repudiated the doctrine
of Valenton. It was frank enough, however, to admit the possibility that the
applicant might have been deprived of his land under Spanish law because
of the inherent ambiguity of the decrees and concomitantly, the various
interpretations which may be given them. But precisely because of the
ambiguity and of the strong "due process mandate" of the
Constitution, the court validated this kind of title.142 This title was
sufficient, even without government administrative action, and entitled the
holder to a Torrens certificate. Justice Holmes explained:

"It will be perceived that the rights of the applicant under the Spanish law
present a problem not without difficulties for courts of a legal tradition. We
have deemed it proper on that account to notice the possible effect of the
change of sovereignty and the act of Congress establishing the fundamental
principles now to be observed. Upon a consideration of the whole case we
are of the opinion that law and justice require that the applicant should be
granted what he seeks, and should not be deprived of what, by the practice
and belief of those among whom he lived, was his property, through a
refined interpretation of an almost forgotten law of Spain." 143

Thus, the court ruled in favor of Cariño and ordered the registration
of the 148 hectares in Baguio Municipality in his name. 144

Examining Cariño closer, the U.S. Supreme Court did not categorically refer
to the title it upheld as "native title." It simply said:

"The Province of Benguet was inhabited by a tribe that the Solicitor-

General, in his argument, characterized as a savage tribe that never
was brought under the civil or military government of the Spanish
Crown. It seems probable, if not certain, that the Spanish officials
would not have granted to anyone in that province the registration
to which formerly the plaintiff was entitled by the Spanish Laws,
and which would have made his title beyond question
good. Whatever may have been the technical position of Spain it does not
follow that, in the view of the United States, he had lost all rights and was a
mere trespasser when the present government seized his land. The
argument to that effect seems to amount to a denial of native
titles through an important part of the Island of Luzon, at least, for the want
of ceremonies which the Spaniards would not have permitted and had not
the power to enforce."145

This is the only instance when Justice Holmes used the term "native title" in
the entire length of the Cariño decision. It is observed that the widespread
use of the term "native title" may be traced to Professor Owen James Lynch,
Jr., a Visiting Professor at the University of the Philippines College of Law from
the Yale University Law School. In 1982, Prof. Lynch published an article in
the Philippine Law Journal entitled Native Title, Private Right and
Tribal Land Law.146 This article was made after Professor Lynch visited over
thirty tribal communities throughout the country and studied the origin and
development of Philippine land laws.147 He discussed Cariño extensively and
used the term "native title" to refer to Cariño's title as discussed and upheld
by the U.S. Supreme Court in said case.

(b) Indian Title

In a footnote in the same article, Professor Lynch stated that the concept of
"native title" as defined by Justice Holmes in Cariño "is conceptually similar
to "aboriginal title" of the American Indians. 148 This is not surprising,
according to Prof. Lynch, considering that during the American regime,
government policy towards ICCs/IPs was consistently made in reference to
native Americans.149 This was clearly demonstrated in the case of Rubi v.
Provincial Board of Mindoro.150

In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the

provincial governor to remove the Mangyans from their domains and place
them in a permanent reservation in Sitio Tigbao, Lake Naujan. Any Mangyan
who refused to comply was to be imprisoned. Rubi and some Mangyans,
including one who was imprisoned for trying to escape from the reservation,
filed for habeas corpus claiming deprivation of liberty under the Board
Resolution. This Court denied the petition on the ground of police power. It
upheld government policy promoting the idea that a permanent settlement
was the only successful method for educating the Mangyans, introducing
civilized customs, improving their health and morals, and protecting the
public forests in which they roamed.151 Speaking through Justice Malcolm, the
court said:

"Reference was made in the President's instructions to the Commission to

the policy adopted by the United States for the Indian Tribes. The methods
followed by the Government of the Philippine Islands in its dealings with the
so-called non-Christian people is said, on argument, to be practically
identical with that followed by the United States Government in its dealings
with the Indian tribes. Valuable lessons, it is insisted, can be derived by an
investigation of the American-Indian policy.

From the beginning of the United States, and even before, the Indians have
been treated as "in a state of pupilage." The recognized relation between the
Government of the United States and the Indians may be described as that
of guardian and ward. It is for the Congress to determine when and how the
guardianship shall be terminated. The Indians are always subject to the
plenary authority of the United States.152

x x x.

As to the second point, the facts in the Standing Bear case and the Rubi case
are not exactly identical. But even admitting similarity of facts, yet it is
known to all that Indian reservations do exist in the United States, that
Indians have been taken from different parts of the country and placed on
these reservations, without any previous consultation as to their own wishes,
and that, when once so located, they have been made to remain on the
reservation for their own good and for the general good of the country. If any
lesson can be drawn from the Indian policy of the United States, it is that the
determination of this policy is for the legislative and executive branches of
the government and that when once so decided upon, the courts should not
interfere to upset a carefully planned governmental system. Perhaps, just as
many forceful reasons exist for the segregation of the Manguianes in Mindoro
as existed for the segregation of the different Indian tribes in the United
States."153

Rubi applied the concept of Indian land grants or reservations in the

Philippines. An Indian reservation is a part of the public domain set apart by
proper authority for the use and occupation of a tribe or tribes of Indians. 154 It
may be set apart by an act of Congress, by treaty, or by executive order, but
it cannot be established by custom and prescription. 155
Indian title to land, however, is not limited to land grants or
reservations. It also covers the "aboriginal right of possession or
occupancy."156 The aboriginal right of possession depends on the actual
occupancy of the lands in question by the tribe or nation as their ancestral
home, in the sense that such lands constitute definable territory occupied
exclusively by the particular tribe or nation. 157 It is a right which exists apart
from any treaty, statute, or other governmental action, although in numerous
instances treaties have been negotiated with Indian tribes, recognizing their
aboriginal possession and delimiting their occupancy rights or settling and
adjusting their boundaries.158

American jurisprudence recognizes the Indians' or native Americans'

rights to land they have held and occupied before the "discovery" of
the Americas by the Europeans. The earliest definitive statement by
the U.S. Supreme Court on the nature of aboriginal title was made in
1823 in Johnson & Graham's Lessee v. M'Intosh.159

In Johnson, the plaintiffs claimed the land in question under two (2) grants
made by the chiefs of two (2) Indian tribes. The U.S. Supreme Court refused
to recognize this conveyance, the plaintiffs being private persons. The only
conveyance that was recognized was that made by the Indians to the
government of the European discoverer. Speaking for the court, Chief Justice
Marshall pointed out that the potentates of the old world believed that they
had made ample compensation to the inhabitants of the new world by
bestowing civilization and Christianity upon them; but in addition, said the
court, they found it necessary, in order to avoid conflicting settlements and
consequent war, to establish the principle that discovery gives title to the
government by whose subjects, or by whose authority, the discovery
was made, against all other European governments, which title
might be consummated by possession.160 The exclusion of all other
Europeans gave to the nation making the discovery the sole right of
acquiring the soil from the natives and establishing settlements upon it. As
regards the natives, the court further stated that:

"Those relations which were to exist between the discoverer and the natives
were to be regulated by themselves. The rights thus acquired being
exclusive, no other power could interpose between them.

In the establishment of these relations, the rights of the

original inhabitants were, in no instance, entirely disregarded; but were
necessarily, to a considerable extent, impaired. They were admitted to be
the rightful occupants of the soil, with a legal as well as just claim
to retain possession of it, and to use it according to their own
discretion; but their rights to complete sovereignty, as independent
nations, were necessarily diminished, and their power to dispose of the soil
at their own will, to whomsoever they pleased, was denied by the
fundamental principle that discovery gave exclusive title to those who made
it.

While the different nations of Europe respected the right of the

natives as occupants, they asserted the ultimate dominion to be in
themselves; and claimed and exercised, as a consequence of this
ultimate dominion, a power to grant the soil, while yet in possession
of the natives. These grants have been understood by all to convey
a title to the grantees, subject only to the Indian right of
occupancy."161

Thus, the discoverer of new territory was deemed to have obtained

the exclusive right to acquire Indian land and extinguish Indian titles. Only
to the discoverer- whether to England, France, Spain or Holland- did this right
belong and not to any other nation or private person. The mere acquisition of
the right nonetheless did not extinguish Indian claims to land. Rather, until
the discoverer, by purchase or conquest, exercised its right, the concerned
Indians were recognized as the "rightful occupants of the soil, with a legal as
well as just claim to retain possession of it." Grants made by the discoverer
to her subjects of lands occupied by the Indians were held to convey a title to
the grantees, subject only to the Indian right of occupancy. Once the
discoverer purchased the land from the Indians or conquered them, it was
only then that the discoverer gained an absolute title unrestricted by Indian
rights.

The court concluded, in essence, that a grant of Indian lands by Indians could
not convey a title paramount to the title of the United States itself to other
parties, saying:

"It has never been contended that the Indian title amounted to
nothing. Their right of possession has never been questioned. The
claim of government extends to the complete ultimate title, charged
with this right of possession, and to the exclusive power of
acquiring that right."162

It has been said that the history of America, from its discovery to the present
day, proves the universal recognition of this principle. 163
The Johnson doctrine was a compromise. It protected Indian rights and their
native lands without having to invalidate conveyances made by the
government to many U.S. citizens.164

Johnson was reiterated in the case of Worcester v. Georgia.165 In this case,

the State of Georgia enacted a law requiring all white persons residing within
the Cherokee nation to obtain a license or permit from the Governor of
Georgia; and any violation of the law was deemed a high misdemeanor. The
plaintiffs, who were white missionaries, did not obtain said license and were
thus charged with a violation of the Act.

The U.S. Supreme Court declared the Act as unconstitutional for interfering
with the treaties established between the United States and the Cherokee
nation as well as the Acts of Congress regulating intercourse with them. It
characterized the relationship between the United States government and
the Indians as:

"The Indian nations were, from their situation, necessarily dependent on

some foreign potentate for the supply of their essential wants, and for their
protection from lawless and injurious intrusions into their country. That power
was naturally termed their protector. They had been arranged under the
protection of Great Britain; but the extinguishment of the British power in
their neighborhood, and the establishment of that of the United States in its
place, led naturally to the declaration, on the part of the Cherokees, that
they were under the protection of the United States, and of no other power.
They assumed the relation with the United States which had before subsisted
with Great Britain.

This relation was that of a nation claiming and receiving the protection of one
more powerful, not that of individuals abandoning their national character,
and submitting as subjects to the laws of a master." 166

It was the policy of the U.S. government to treat the Indians as nations with
distinct territorial boundaries and recognize their right of occupancy over all
the lands within their domains. Thus:

"From the commencement of our government Congress has passed acts to

regulate trade and intercourse with the Indians; which treat them as nations,
respect their rights, and manifest a firm purpose to afford that protection
which treaties stipulate. All these acts, and especially that of 1802, which is
still in force, manifestly consider the several Indian nations as distinct
political communities, having territorial boundaries, within which
their authority is exclusive, and having a right to all the lands within
those boundaries, which is not only acknowledged, but guaranteed
by the United States.

x x x.

"The Indian nations had always been considered as distinct,

independent political communities, retaining their original natural
rights, as the undisputed possessors of the soil from time
immemorial, with the single exception of that imposed by irresistible power,
which excluded them from intercourse with any other European potentate
than the first discoverer of the coast of the particular region claimed: and
this was a restriction which those European potentates imposed on
themselves, as well as on the Indians. The very term "nation," so generally
applied to them, means "a people distinct from others." x x x. 167

The Cherokee nation, then, is a distinct community, occupying its own

territory, with boundaries accurately described, in which the laws of Georgia
can have no force, and which the citizens of Georgia have no right to enter
but with the assent of the Cherokees themselves or in conformity with
treaties and with the acts of Congress. The whole intercourse between the
United States and this nation is, by our Constitution and laws, vested in the
government of the United States."168

The discovery of the American continent gave title to the government of the
discoverer as against all other European governments. Designated as the
naked fee,169 this title was to be consummated by possession and was
subject to the Indian title of occupancy. The discoverer acknowledged the
Indians' legal and just claim to retain possession of the land, the Indians
being the original inhabitants of the land. The discoverer nonetheless
asserted the exclusive right to acquire the Indians' land- either by purchase,
"defensive" conquest, or cession- and in so doing, extinguish the Indian title.
Only the discoverer could extinguish Indian title because it alone asserted
ultimate dominion in itself. Thus, while the different nations of Europe
respected the rights of the natives as occupants, they all asserted the
ultimate dominion and title to be in themselves. 170

As early as the 19th century, it became accepted doctrine that

although fee title to the lands occupied by the Indians when the
colonists arrived became vested in the sovereign- first the
discovering European nation and later the original 13 States and the
United States- a right of occupancy in the Indian tribes was
nevertheless recognized. The Federal Government continued the policy of
respecting the Indian right of occupancy, sometimes called Indian title, which
it accorded the protection of complete ownership. 171 But this aboriginal
Indian interest simply constitutes "permission" from the whites to occupy the
land, and means mere possession not specifically recognized as ownership
by Congress.172 It is clear that this right of occupancy based upon aboriginal
possession is not a property right.173 It is vulnerable to affirmative action by
the federal government who, as sovereign, possessed exclusive power to
extinguish the right of occupancy at will. 174 Thus, aboriginal title is not
the same as legal title. Aboriginal title rests on actual, exclusive and
continuous use and occupancy for a long time. 175 It entails that land owned
by Indian title must be used within the tribe, subject to its laws and customs,
and cannot be sold to another sovereign government nor to any
citizen.176 Such title as Indians have to possess and occupy land is in the
tribe, and not in the individual Indian; the right of individual Indians to share
in the tribal property usually depends upon tribal membership, the property
of the tribe generally being held in communal ownership. 177

As a rule, Indian lands are not included in the term "public lands," which is
ordinarily used to designate such lands as are subject to sale or other
disposal under general laws.178 Indian land which has been abandoned is
deemed to fall into the public domain.179 On the other hand, an Indian
reservation is a part of the public domain set apart for the use and
occupation of a tribe of Indians.180 Once set apart by proper authority, the
reservation ceases to be public land, and until the Indian title is
extinguished, no one but Congress can initiate any preferential right on, or
restrict the nation's power to dispose of, them. 181

The American judiciary struggled for more than 200 years with the
ancestral land claims of indigenous Americans.182 And two things are
clear. First, aboriginal title is recognized. Second, indigenous property
systems are also recognized. From a legal point of view, certain benefits can
be drawn from a comparison of Philippine IPs to native Americans. 183 Despite
the similarities between native title and aboriginal title, however, there are
at present some misgivings on whether jurisprudence on American Indians
may be cited authoritatively in the Philippines. The U.S. recognizes the
possessory rights of the Indians over their land; title to the land, however, is
deemed to have passed to the U.S. as successor of the discoverer. The
aboriginal title of ownership is not specifically recognized as ownership by
action authorized by Congress.184 The protection of aboriginal title merely
guards against encroachment by persons other than the Federal
Government.185 Although there are criticisms against the refusal to recognize
the native Americans' ownership of these lands, 186 the power of the State to
extinguish these titles has remained firmly entrenched. 187

Under the IPRA, the Philippine State is not barred form asserting sovereignty
over the ancestral domains and ancestral lands. 188 The IPRA, however, is still
in its infancy and any similarities between its application in the Philippines
vis-à-vis American Jurisprudence on aboriginal title will depend on the
peculiar facts of each case.

(c) Why the Cariño doctrine is unique

In the Philippines, the concept of native title first upheld in Cariño and
enshrined in the IPRA grants ownership, albeit in limited form, of the land to
the ICCs/IPs. Native title presumes that the land is private and was never
public. Cariño is the only case that specifically and categorically
recognizes native title. The long line of cases citing Cariño did not
touch on native title and the private character of ancestral domains
and lands. Cariño was cited by the succeeding cases to support the
concept of acquisitive prescription under the Public Land Act which
is a different matter altogether. Under the Public Land Act, land sought
to be registered must be public agricultural land. When the conditions
specified in Section 48 [b] of the Public Land Act are complied with, the
possessor of the land is deemed to have acquired, by operation of law, a
right to a grant of the land.189 The land ceases to be part of the public
domain,190 ipso jure,191 and is converted to private property by the mere
lapse or completion of the prescribed statutory period.

It was only in the case of Oh Cho v. Director of Lands192 that the court
declared that the rule that all lands that were not acquired from the
government, either by purchase or grant, belong to the public domain has an
exception. This exception would be any land that should have been in the
possession of an occupant and of his predecessors-in-interest since time
immemorial. It is this kind of possession that would justify the presumption
that the land had never been part of the public domain or that it had been
private property even before the Spanish conquest. 193 Oh Cho, however, was
decided under the provisions of the Public Land Act and Cariño was cited to
support the applicant's claim of acquisitive prescription under the said Act.

All these years, Cariño had been quoted out of context simply to justify long,
continuous, open and adverse possession in the concept of owner of public
agricultural land. It is this long, continuous, open and adverse possession in
the concept of owner of thirty years both for ordinary citizens 194 and
members of the national cultural minorities 195 that converts the land from
public into private and entitles the registrant to a torrens certificate of title.

(3) The Option of Securing a Torrens Title to the Ancestral Land

Indicates that the Land is Private.

The private character of ancestral lands and domains as laid down in the
IPRA is further strengthened by the option given to individual ICCs/IPs over
their individually-owned ancestral lands. For purposes of registration
under the Public Land Act and the Land Registration Act, the IPRA
expressly converts ancestral land into public agricultural land which
may be disposed of by the State. The necessary implication is
that ancestral land is private. It, however, has to be first converted
to public agricultural land simply for registration purposes. To wit:

"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141,
as amended, or the Land Registration Act 496- Individual members of
cultural communities, with respect to their individually-owned ancestral lands
who, by themselves or through their predecessors-in-interest, have been in
continuous possession and occupation of the same in the concept of owner
since time immemorial or for a period of not less than thirty (30) years
immediately preceding the approval of this Act and uncontested by the
members of the same ICCs/IPs shall have the option to secure title to their
ancestral lands under the provisions of Commonwealth Act 141, as amended,
or the Land Registration Act 496.

For this purpose, said individually-owned ancestral lands, which are

agricultural in character and actually used for agricultural, residential,
pasture, and tree farming purposes, including those with a slope of eighteen
percent (18%) or more, are hereby classified as alienable and disposable
agricultural lands.

The option granted under this section shall be exercised within twenty (20)
years from the approval of this Act."196

ICCs/IPs are given the option to secure a torrens certificate of title over their
individually-owned ancestral lands. This option is limited to
ancestral lands only, not domains, and such lands must be individually, not
communally, owned.

Ancestral lands that are owned by individual members of ICCs/IPs who, by

themselves or through their predecessors-in-interest, have been in
continuous possession and occupation of the same in the concept of owner
since time immemorial197 or for a period of not less than 30 years, which
claims are uncontested by the members of the same ICCs/IPs, may be
registered under C.A. 141, otherwise known as the Public Land Act, or Act
496, the Land Registration Act. For purposes of registration, the individually-
owned ancestral lands are classified as alienable and disposable agricultural
lands of the public domain, provided, they are agricultural in character and
are actually used for agricultural, residential, pasture and tree farming
purposes. These lands shall be classified as public agricultural lands
regardless of whether they have a slope of 18% or more.

The classification of ancestral land as public agricultural land is in

compliance with the requirements of the Public Land Act and the Land
Registration Act. C.A. 141, the Public Land Act, deals specifically with lands of
the public domain.198 Its provisions apply to those lands "declared open to
disposition or concession" x x x "which have not been reserved for public or
quasi-public purposes, nor appropriated by the Government, nor in any
manner become private property, nor those on which a private right
authorized and recognized by this Act or any other valid law x x x or which
having been reserved or appropriated, have ceased to be so." 199 Act 496, the
Land Registration Act, allows registration only of private lands and public
agricultural lands. Since ancestral domains and lands are private, if
the ICC/IP wants to avail of the benefits of C.A. 141 and Act 496, the
IPRA itself converts his ancestral land, regardless of whether the
land has a slope of eighteen per cent (18%) or over,200 from private
to public agricultural land for proper disposition.

The option to register land under the Public Land Act and the Land
Registration Act has nonetheless a limited period. This option must be
exercised within twenty (20) years from October 29, 1997, the date of
approval of the IPRA.

Thus, ancestral lands and ancestral domains are not part of the
lands of the public domain. They are private and belong to the
ICCs/IPs. Section 3 of Article XII on National Economy and Patrimony of
the 1987 Constitution classifies lands of the public domain into four
categories: (a) agricultural, (b) forest or timber, (c) mineral lands, and (d)
national parks. Section 5 of the same Article XII mentions ancestral lands
and ancestral domains but it does not classify them under any of the said
four categories. To classify them as public lands under any one of the
four classes will render the entire IPRA law a nullity. The spirit of the
IPRA lies in the distinct concept of ancestral domains and ancestral lands.
The IPRA addresses the major problem of the ICCs/IPs which is loss of land.
Land and space are of vital concern in terms of sheer survival of the
ICCs/IPs.201

The 1987 Constitution mandates the State to "protect the rights of

indigenous cultural communities to their ancestral lands" and that
"Congress provide for the applicability of customary laws x x x in
determining the ownership and extent of ancestral domain."202 It is
the recognition of the ICCs/IPs distinct rights of ownership over
their ancestral domains and lands that breathes life into this
constitutional mandate.

B. The right of ownership and possession by the ICCs/IPs of their

ancestral domains is a limited form of ownership and does not
include the right to alienate the same.

Registration under the Public Land Act and Land Registration Act recognizes
the concept of ownership under the civil law. This ownership is based on
adverse possession for a specified period, and harkens to Section 44 of the
Public Land Act on administrative legalization (free patent) of imperfect or
incomplete titles and Section 48 (b) and (c) of the same Act on the judicial
confirmation of imperfect or incomplete titles. Thus:

"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of
more than twenty-four hectares and who since July fourth, 1926 or prior
thereto, has continuously occupied and cultivated, either by himself or
through his predecessors-in-interest, a tract or tracts of agricultural public
lands subject to disposition, or who shall have paid the real estate tax
thereon while the same has not been occupied by any person shall be
entitled, under the provisions of this chapter, to have a free patent issued to
him for such tract or tracts of such land not to exceed twenty-four hectares.

A member of the national cultural minorities who has continuously

occupied and cultivated, either by himself or through his
predecessors-in-interest, a tract or tracts of land, whether
disposable or not since July 4, 1955, shall be entitled to the right
granted in the preceding paragraph of this section: Provided, That
at the time he files his free patent application he is not the owner of
any real property secured or disposable under the provision of the
Public Land Law.203

x x x.
"Sec. 48. The following described citizens of the Philippines, occupying lands
of the public domain or claiming to own any such lands or an interest therein,
but whose titles have not been perfected or completed, may apply to the
Court of First Instance of the province where the land is located for
confirmation of their claims and the issuance of a certificate of title therefor,
under the Land Registration Act, to wit:

(a) [perfection of Spanish titles] xxx.

(b) Those who by themselves or through their predecessors-in-interest have

been in open, continuous, exclusive, and notorious possession and
occupation of agricultural lands of the public domain, under a bona fide claim
of acquisition or ownership, for at least thirty years immediately preceding
the filing of the application for confirmation of title except when prevented
by war or force majeure. These shall be conclusively presumed to have
performed all the conditions essential to a Government grant and shall be
entitled to a certificate of title under the provisions of this Chapter.

(c) Members of the national cultural minorities who by themselves

or through their predecessors-in-interest have been in open,
continuous, exclusive and notorious possession and occupation of
lands of the public domain suitable to agriculture, whether
disposable or not, under a bona fide claim of ownership for at least
30 years shall be entitled to the rights granted in sub-section (b)
hereof."204

Registration under the foregoing provisions presumes that the land was
originally public agricultural land but because of adverse possession since
July 4, 1955 (free patent) or at least thirty years (judicial confirmation), the
land has become private. Open, adverse, public and continuous possession is
sufficient, provided, the possessor makes proper application therefor. The
possession has to be confirmed judicially or administratively after which a
torrens title is issued.

A torrens title recognizes the owner whose name appears in the certificate as
entitled to all the rights of ownership under the civil law. The Civil Code of
the Philippines defines ownership in Articles 427, 428 and 429. This concept
is based on Roman Law which the Spaniards introduced to the Philippines
through the Civil Code of 1889. Ownership, under Roman Law, may be
exercised over things or rights. It primarily includes the right of the owner to
enjoy and dispose of the thing owned. And the right to enjoy and dispose of
the thing includes the right to receive from the thing what it produces, 205 the
right to consume the thing by its use,206 the right to alienate, encumber,
transform or even destroy the thing owned,207 and the right to exclude from
the possession of the thing owned by any other person to whom the owner
has not transmitted such thing.208

1. The Indigenous Concept of Ownership and Customary Law.

Ownership of ancestral domains by native title does not entitle the ICC/IP to
a torrens title but to a Certificate of Ancestral Domain Title (CADT). The CADT
formally recognizes the indigenous concept of ownership of the ICCs/IPs
over their ancestral domain. Thus:

"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership

sustains the view that ancestral domains and all resources found therein
shall serve as the material bases of their cultural integrity. The indigenous
concept of ownership generally holds that ancestral domains are the ICCs/IPs
private but community property which belongs to all generations and
therefore cannot be sold, disposed or destroyed. It likewise covers
sustainable traditional resource rights."

The right of ownership and possession of the ICCs/IPs to their

ancestral domains is held under the indigenous concept of
ownership. This concept maintains the view that ancestral domains
are the ICCs/IPs private but community property. It is private simply
because it is not part of the public domain. But its private character
ends there. The ancestral domain is owned in common by the
ICCs/IPs and not by one particular person. The IPRA itself provides that
areas within the ancestral domains, whether delineated or not, are presumed
to be communally held.209 These communal rights, however, are not
exactly the same as co-ownership rights under the Civil Code.210 Co-
ownership gives any co-owner the right to demand partition of the property
held in common. The Civil Code expressly provides that "no co-owner shall
be obliged to remain in the co-ownership." Each co-owner may demand at
any time the partition of the thing in common, insofar as his share is
concerned.211 To allow such a right over ancestral domains may be
destructive not only of customary law of the community but of the very
community itself.212

Communal rights over land are not the same as corporate rights
over real property, much less corporate condominium rights. A
corporation can exist only for a maximum of fifty (50) years subject to an
extension of another fifty years in any single instance. 213 Every stockholder
has the right to disassociate himself from the corporation. 214 Moreover, the
corporation itself may be dissolved voluntarily or involuntarily. 215

Communal rights to the land are held not only by the present
possessors of the land but extends to all generations of the
ICCs/IPs, past, present and future, to the domain. This is the reason
why the ancestral domain must be kept within the ICCs/IPs themselves. The
domain cannot be transferred, sold or conveyed to other persons. It belongs
to the ICCs/IPs as a community.

Ancestral lands are also held under the indigenous concept of

ownership. The lands are communal. These lands, however, may be
transferred subject to the following limitations: (a) only to the members of
the same ICCs/IPs; (b) in accord with customary laws and traditions; and (c)
subject to the right of redemption of the ICCs/IPs for a period of 15 years if
the land was transferred to a non-member of the ICCs/IPs.

Following the constitutional mandate that "customary law govern property

rights or relations in determining the ownership and extent of ancestral
domains,"216 the IPRA, by legislative fiat, introduces a new concept of
ownership. This is a concept that has long existed under customary
law.217

Custom, from which customary law is derived, is also recognized

under the Civil Code as a source of law.218 Some articles of the Civil
Code expressly provide that custom should be applied in cases where no
codal provision is applicable.219 In other words, in the absence of any
applicable provision in the Civil Code, custom, when duly proven, can define
rights and liabilities.220

Customary law is a primary, not secondary, source of rights under the

IPRA and uniquely applies to ICCs/IPs. Its recognition does not depend on
the absence of a specific provision in the civil law. The indigenous
concept of ownership under customary law is specifically acknowledged and
recognized, and coexists with the civil law concept and the laws on land
titling and land registration.221

To be sure, the indigenous concept of ownership exists even without

a paper title. The CADT is merely a "formal recognition" of native title. This
is clear from Section 11 of the IPRA, to wit:

"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to

their ancestral domains by virtue of Native Title shall be recognized and
respected. Formal recognition, when solicited by ICCs/IPs concerned shall be
embodied in a Certificate of Ancestral Domain Title, which shall recognize the
title of the concerned ICCs/IPs over the territories identified and delineated."

The moral import of ancestral domain, native land or being native is

"belongingness" to the land, being people of the land- by sheer force of
having sprung from the land since time beyond recall, and the faithful
nurture of the land by the sweat of one's brow. This is fidelity of usufructuary
relation to the land- the possession of stewardship through perduring,
intimate tillage, and the mutuality of blessings between man and land; from
man, care for land; from the land, sustenance for man. 222

C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the

Regalian Doctrine Enshrined in Section 2, Article XII of the 1987
Constitution.

1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands

The IPRA grants the ICCs/IPs several rights over their ancestral domains and
ancestral lands. Section 7 provides for the rights over ancestral domains:

"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and

possession of ICCs/IPs to their ancestral domains shall be recognized and
protected. Such rights include:

a) Right of Ownership.- The right to claim ownership over lands, bodies

of water traditionally and actually occupied by ICCs/IPs, sacred
places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains;

b) Right to Develop Lands and Natural Resources.- Subject to Section 56

hereof, the right to develop, control and use lands and territories
traditionally occupied, owned, or used; to manage and conserve
natural resources within the territories and uphold the
responsibilities for future generations; to benefit and share the
profits from allocation and utilization of the natural resources found
therein; the right to negotiate the terms and conditions for the
exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws; the right to an
informed and intelligent participation in the formulation and implementation
of any project, government or private, that will affect or impact upon the
ancestral domains and to receive just and fair compensation for any
damages which they may sustain as a result of the project; and the right to
effective measures by the government to prevent any interference with,
alienation and encroachment upon these rights;"

c) Right to Stay in the Territories.- The right to stay in the territory and not to
be removed therefrom. No ICCs/IPs will be relocated without their free and
prior informed consent, nor through any means other than eminent domain.
x x x;

d) Right in Case of Displacement.- In case displacement occurs as a result of

natural catastrophes, the State shall endeavor to resettle the displaced
ICCs/IPs in suitable areas where they can have temporary life support
systems: x x x;

e) Right to Regulate the Entry of Migrants.- Right to regulate the entry of

migrant settlers and organizations into their domains;

f) Right to Safe and Clean Air and Water.-For this purpose, the ICCs/IPs shall
have access to integrated systems for the management of their inland
waters and air space;

g) Right to Claim Parts of Reservations.- The right to claim parts of the

ancestral domains which have been reserved for various purposes, except
those reserved and intended for common and public welfare and service;

h) Right to Resolve Conflict.- Right to resolve land conflicts in accordance

with customary laws of the area where the land is located, and only in
default thereof shall the complaints be submitted to amicable settlement and
to the Courts of Justice whenever necessary."

Section 8 provides for the rights over ancestral lands:

"Sec. 8. Rights to Ancestral Lands.- The right of ownership and possession of

the ICCs/IPs to their ancestral lands shall be recognized and protected.

a) Right to transfer land/property.- Such right shall include the right to

transfer land or property rights to/among members of the same ICCs/IPs,
subject to customary laws and traditions of the community concerned.

b) Right to Redemption.- In cases where it is shown that the transfer of

land/property rights by virtue of any agreement or devise, to a non-member
of the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs, or
is transferred for an unconscionable consideration or price, the transferor
ICC/IP shall have the right to redeem the same within a period not exceeding
fifteen (15) years from the date of transfer."
Section 7 (a) defines the ICCs/IPs the right of ownership over their
ancestral domains which covers (a) lands, (b) bodies of water traditionally
and actually occupied by the ICCs/IPs, (c) sacred places, (d) traditional
hunting and fishing grounds, and (e) all improvements made by them at any
time within the domains. The right of ownership includes the following
rights: (1) the right to develop lands and natural resources; (b) the right to
stay in the territories; (c) the right to resettlement in case of displacement;
(d) the right to regulate the entry of migrants; (e) the right to safe and clean
air and water; (f) the right to claim parts of the ancestral domains as
reservations; and (g) the right to resolve conflict in accordance with
customary laws.

Section 8 governs their rights to ancestral lands. Unlike ownership over the
ancestral domains, Section 8 gives the ICCs/IPs also the right to transfer the
land or property rights to members of the same ICCs/IPs or non-members
thereof. This is in keeping with the option given to ICCs/IPs to secure a
torrens title over the ancestral lands, but not to domains.

2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the
Ancestral Domains Does Not Deprive the State of Ownership Over the
Natural Resources and Control and Supervision in their Development and
Exploitation.

The Regalian doctrine on the ownership, management and utilization of

natural resources is declared in Section 2, Article XII of the 1987
Constitution, viz:

"Sec. 2. All lands of the public domain, waters, minerals, coal,

petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The
exploration, development, and utilization of natural resources shall
be under the full control and supervision of the State. The State
may directly undertake such activities, or, it may enter into co-
production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such agreements
may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be
provided by law. In cases of water rights for irrigation, water supply,
fisheries, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of
the grant.

The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural

resources by Filipino citizens, as well as cooperative fish farming, with
priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and
lagoons.

The President may enter into agreements with foreign-owned corporations

involving either technical or financial assistance for large-scale
exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and
general welfare of the country. In such agreements, the state shall promote
the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution." 223

All lands of the public domain and all natural resources- waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources- are owned by the State. The Constitution provides that
in the exploration, development and utilization of these natural resources,
the State exercises full control and supervision, and may undertake the same
in four (4) modes:

1. The State may directly undertake such activities; or

2. The State may enter into co-production, joint venture or production-

sharing agreements with Filipino citizens or qualified corporations;

3. Congress may, by law, allow small-scale utilization of natural resources by

Filipino citizens;

4. For the large-scale exploration, development and utilization of minerals,

petroleum and other mineral oils, the President may enter into agreements
with foreign-owned corporations involving technical or financial assistance.

As owner of the natural resources, the State is accorded primary

power and responsibility in the exploration, development and
utilization of these natural resources. The State may directly undertake
the exploitation and development by itself, or, it may allow participation by
the private sector through co-production, 224 joint venture,225 or production-
sharing agreements.226 These agreements may be for a period of 25 years,
renewable for another 25 years. The State, through Congress, may allow the
small-scale utilization of natural resources by Filipino citizens. For the large-
scale exploration of these resources, specifically minerals, petroleum and
other mineral oils, the State, through the President, may enter into technical
and financial assistance agreements with foreign-owned corporations.

Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-
Scale Mining Act of 1991 (R.A. 7076) the three types of agreements, i.e., co-
production, joint venture or production-sharing, may apply to both large-
scale227 and small-scale mining.228 "Small-scale mining" refers to "mining
activities which rely heavily on manual labor using simple implements and
methods and do not use explosives or heavy mining equipment." 229

Examining the IPRA, there is nothing in the law that grants to the
ICCs/IPs ownership over the natural resources within their ancestral
domains. The right of ICCs/IPs in their ancestral domains
includes ownership, but this "ownership" is expressly defined and
limited in Section 7 (a) as:

"Sec. 7. a) Right of ownership- The right to claim ownership over lands,

bodies of water traditionally and actually occupied by ICCs/IPs, sacred places,
traditional hunting and fishing grounds, and all improvements made by them
at any time within the domains;"

The ICCs/IPs are given the right to claim ownership over "lands, bodies of
water traditionally and actually occupied by ICCs/IPs, sacred places,
traditional hunting and fishing grounds, and all improvements made by them
at any time within the domains." It will be noted that this enumeration does
not mention bodies of water not occupied by the
ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting
grounds, fish in the traditional fishing grounds, forests or timber in the sacred
places, etc. and all other natural resources found within the ancestral
domains. Indeed, the right of ownership under Section 7 (a) does not
cover "waters, minerals, coal, petroleum and other mineral oils, all
forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna and all
other natural resources" enumerated in Section 2, Article XII of the
1987 Constitution as belonging to the State.
The non-inclusion of ownership by the ICCs/IPs over the natural resources in
Section 7(a) complies with the Regalian doctrine.

(a) Section 1, Part II, Rule III of the Implementing Rules Goes
Beyond the Parameters of Sec. 7 (a) of the IPRA And is
Unconstitutional.

The Rules Implementing the IPRA230 in Section 1, Part II, Rule III reads:

"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over

lands, waters, and natural resources and all improvements made by them at
any time within the ancestral domains/ lands. These rights shall include, but
not limited to, the right over the fruits, the right to possess, the right to use,
right to consume, right to exclude and right to recover ownership, and the
rights or interests over land and natural resources. The right to recover shall
be particularly applied to lands lost through fraud or any form or vitiated
consent or transferred for an unconscionable price."

Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership

over "lands, waters and natural resources." The term "natural resources" is
not one of those expressly mentioned in Section 7 (a) of the law. Our
Constitution and jurisprudence clearly declare that the right to claim
ownership over land does not necessarily include the right to claim
ownership over the natural resources found on or under the land. 231 The
IPRA itself makes a distinction between land and natural resources.
Section 7 (a) speaks of the right of ownership only over the land
within the ancestral domain. It is Sections 7 (b) and 57 of the law
that speak of natural resources, and these provisions, as shall be
discussed later, do not give the ICCs/IPs the right of ownership over
these resources.

The constitutionality of Section 1, Part II, Rule III of the Implementing Rules
was not specifically and categorically challenged by petitioners. Petitioners
actually assail the constitutionality of the Implementing Rules in
general.232 Nevertheless, to avoid any confusion in the implementation of the
law, it is necessary to declare that the inclusion of "natural resources" in
Section 1, Part II, Rule III of the Implementing Rules goes beyond the
parameters of Section 7 (b) of the law and is contrary to Section 2,
Article XII of the 1987 Constitution.

(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of

the IPRA Is Allowed Under Paragraph 3, Section 2 of Article XII of
the Constitution.
Ownership over natural resources remain with the State and the IPRA in
Section 7 (b) merely grants the ICCs/IPs the right to manage them, viz:

"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject to Section
56 hereof, right to develop, control and use lands and territories traditionally
occupied, owned, or used; to manage and conserve natural resources within
the territories and uphold the responsibilities for future generations; to
benefit and share the profits from allocation and utilization of the natural
resources found therein; the right to negotiate the terms and conditions for
the exploration of natural resources in the areas for the purpose of ensuring
ecological, environmental protection and the conservation measures,
pursuant to national and customary laws; the right to an informed and
intelligent participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral domains
and to receive just and fair compensation for any damages which they may
sustain as a result of the project; and the right to effective measures by the
government to prevent any interference with, alienation and encroachment
upon these rights;"

The right to develop lands and natural resources under Section 7 (b) of
the IPRA enumerates the following rights:

a) the right to develop, control and use lands and territories traditionally
occupied;

b) the right to manage and conserve natural resources within the territories
and uphold the responsibilities for future generations;

c) the right to benefit and share the profits from the allocation and utilization
of the natural resources found therein;

d) the right to negotiate the terms and conditions for the exploration
of natural resources for the purpose of ensuring ecological, environmental
protection and the conservation measures, pursuant to national and
customary laws;

e) the right to an informed and intelligent participation in the formulation and

implementation of any project, government or private, that will affect or
impact upon the ancestral domains and to receive just and fair compensation
for any damages which they may sustain as a result of the project;

f) the right to effective measures by the government to prevent any

interference with, alienation and encroachment upon these rights. 233
Ownership over the natural resources in the ancestral domains
remains with the State and the ICCs/IPs are merely granted the right
to "manage and conserve" them for future generations, "benefit and
share" the profits from their allocation and utilization, and
"negotiate the terms and conditions for their exploration" for the
purpose of "ensuring ecological and environmental protection and
conservation measures." It must be noted that the right to negotiate the
terms and conditions over the natural resources covers only their exploration
which must be for the purpose of ensuring ecological and environmental
protection of, and conservation measures in the ancestral domain. It does
not extend to the exploitation and development of natural resources.

Simply stated, the ICCs/IPs' rights over the natural resources take
the form of management or stewardship. For the ICCs/IPs may use
these resources and share in the profits of their utilization or negotiate the
terms for their exploration. At the same time, however, the ICCs/IPs must
ensure that the natural resources within their ancestral domains are
conserved for future generations and that the "utilization" of these resources
must not harm the ecology and environment pursuant to national and
customary laws.234

The limited rights of "management and use" in Section 7 (b) must be

taken to contemplate small-scale utilization of natural resources as
distinguished from large-scale. Small-scale utilization of natural
resources is expressly allowed in the third paragraph of Section 2,
Article XII of the Constitution "in recognition of the plight of forest
dwellers, gold panners, marginal fishermen and others similarly situated who
exploit our natural resources for their daily sustenance and
survival."235 Section 7 (b) also expressly mandates the ICCs/IPs to manage
and conserve these resources and ensure environmental and ecological
protection within the domains, which duties, by their very nature, necessarily
reject utilization in a large-scale.

(c) The Large-Scale Utilization of Natural Resources In Section 57 of

the IPRA Is Allowed Under Paragraphs 1 and 4, Section 2, Article XII
of the 1987 Constitution.

Section 57 of the IPRA provides:

"Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs shall
have priority rights in the harvesting, extraction, development or
exploitation of any natural resources within the ancestral domains. A
non-member of the ICCs/IPs concerned may be allowed to take part in the
development and utilization of the natural resources for a period of not
exceeding twenty-five (25) years renewable for not more than twenty-five
(25) years: Provided, That a formal and written agreement is entered into
with the ICCs/IPs concerned or that the community, pursuant to its own
decision-making process, has agreed to allow such operation: Provided
finally, That the NCIP may exercise visitorial powers and take appropriate
action to safeguard the rights of the ICCs/IPs under the same contract."

Section 57 speaks of the "harvesting, extraction, development or

exploitation of natural resources within ancestral domains" and "gives the
ICCs/IPs 'priority rights' therein." The terms "harvesting, extraction,
development or exploitation" of any natural resources within the
ancestral domains obviously refer to large-scale utilization. It is
utilization not merely for subsistence but for commercial or other extensive
use that require technology other than manual labor. 236 The law recognizes
the probability of requiring a non-member of the ICCs/IPs to participate in the
development and utilization of the natural resources and thereby allows such
participation for a period of not more than 25 years, renewable for another
25 years. This may be done on condition that a formal written agreement be
entered into by the non-member and members of the ICCs/IPs.

Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and
conserve" the natural resources. Instead, the law only grants the ICCs/IPs
"priority rights" in the development or exploitation thereof. Priority means
giving preference. Having priority rights over the natural resources does not
necessarily mean ownership rights. The grant of priority rights implies that
there is a superior entity that owns these resources and this entity has the
power to grant preferential rights over the resources to whosoever itself
chooses.

Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an

affirmation of the said doctrine that all natural resources found within the
ancestral domains belong to the State. It incorporates by implication the
Regalian doctrine, hence, requires that the provision be read in the light of
Section 2, Article XII of the 1987 Constitution. Interpreting Section 2,
Article XII of the 1987 Constitution237 in relation to Section 57 of
IPRA, the State, as owner of these natural resources, may directly
undertake the development and exploitation of the natural
resources by itself, or in the alternative, it may recognize the
priority rights of the ICCs/IPs as owners of the land on which the
natural resources are found by entering into a co-production, joint
venture, or production-sharing agreement with them. The State may
likewise enter into any of said agreements with a non-member of
the ICCs/IPs, whether natural or juridical, or enter into agreements
with foreign-owned corporations involving either technical or
financial assistance for the large-scale exploration, development
and utilization of minerals, petroleum, and other mineral oils, or
allow such non-member to participate in its agreement with the
ICCs/IPs. If the State decides to enter into an agreement with a non-ICC/IP
member, the National Commission on Indigenous Peoples (NCIP) shall ensure
that the rights of the ICCs/IPs under the agreement shall be protected. The
agreement shall be for a period of 25 years, renewable for another 25 years.

To reiterate, in the large-scale utilization of natural resources within the

ancestral domains, the State, as owner of these resources, has four (4)
options: (1) it may, of and by itself, directly undertake the development and
exploitation of the natural resources; or (2) it may recognize the priority
rights of the ICCs/IPs by entering into an agreement with them for such
development and exploitation; or (3) it may enter into an agreement with a
non-member of the ICCs/IPs, whether natural or juridical, local or foreign; or
(4) it may allow such non-member to participate in the agreement with the
ICCs/IPs.

The rights granted by the IPRA to the ICCs/IPs over the natural
resources in their ancestral domains merely gives the ICCs/IPs, as
owners and occupants of the land on which the resources are found,
the right to the small-scale utilization of these resources, and at the
same time, a priority in their large-scale development and
exploitation. Section 57 does not mandate the State to
automatically give priority to the ICCs/IPs. The State has several
options and it is within its discretion to choose which option to
pursue. Moreover, there is nothing in the law that gives the ICCs/IPs the
right to solely undertake the large-scale development of the natural
resources within their domains. The ICCs/IPs must undertake such endeavour
always under State supervision or control. This indicates that the State does
not lose control and ownership over the resources even in their exploitation.
Sections 7 (b) and 57 of the law simply give due respect to the ICCs/IPs who,
as actual occupants of the land where the natural resources lie, have
traditionally utilized these resources for their subsistence and survival.
Neither is the State stripped of ownership and control of the natural
resources by the following provision:

"Section 59. Certification Precondition.- All departments and other

governmental agencies shall henceforth be strictly enjoined from issuing,
renewing or granting any concession, license or lease, or entering into any
production-sharing agreement. without prior certification from the NCIP that
the area affected does not overlap with any ancestral domain. Such
certification shall only be issued after a field-based investigation is
conducted by the Ancestral Domains Office of the area concerned: Provided,
That no certification shall be issued by the NCIP without the free and prior
informed and written consent of the ICCs/IPs concerned: Provided, further,
That no department, government agency or government-owned or -
controlled corporation may issue new concession, license, lease, or
production sharing agreement while there is a pending application for a
CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or
suspend, in accordance with this Act, any project that has not satisfied the
requirement of this consultation process."

Concessions, licenses, lease or production-sharing agreements for the

exploitation of natural resources shall not be issued, renewed or granted by
all departments and government agencies without prior certification from the
NCIP that the area subject of the agreement does not overlap with any
ancestral domain. The NCIP certification shall be issued only after a field-
based investigation shall have been conducted and the free and prior
informed written consent of the ICCs/IPs obtained. Non-compliance with the
consultation requirement gives the ICCs/IPs the right to stop or suspend any
project granted by any department or government agency.

As its subtitle suggests, this provision requires as a precondition for the

issuance of any concession, license or agreement over natural resources,
that a certification be issued by the NCIP that the area subject of the
agreement does not lie within any ancestral domain. The provision does not
vest the NCIP with power over the other agencies of the State as to
determine whether to grant or deny any concession or license or agreement.
It merely gives the NCIP the authority to ensure that the ICCs/IPs have been
informed of the agreement and that their consent thereto has been obtained.
Note that the certification applies to agreements over natural resources that
do not necessarily lie within the ancestral domains. For those that are found
within the said domains, Sections 7(b) and 57 of the IPRA apply.
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN
THE INDIGENOUS INTERNATIONAL MOVEMENT.

The indigenous movement can be seen as the heir to a history of anti-

imperialism stretching back to prehistoric times. The movement received a
massive impetus during the 1960's from two sources. First, the
decolonization of Asia and Africa brought into the limelight the possibility of
peoples controlling their own destinies. Second, the right of self-
determination was enshrined in the UN Declaration on Human Rights. 238 The
rise of the civil rights movement and anti-racism brought to the attention of
North American Indians, Aborigines in Australia, and Maori in New Zealand
the possibility of fighting for fundamental rights and freedoms.

In 1974 and 1975, international indigenous organizations were

founded,239 and during the 1980's, indigenous affairs were on the
international agenda. The people of the Philippine Cordillera were the first
Asians to take part in the international indigenous movement. It was the
Cordillera People's Alliance that carried out successful campaigns against the
building of the Chico River Dam in 1981-82 and they have since become one
of the best-organized indigenous bodies in the world. 240

Presently, there is a growing concern for indigenous rights in the

international scene. This came as a result of the increased publicity focused
on the continuing disrespect for indigenous human rights and the destruction
of the indigenous peoples' environment, together with the national
governments' inability to deal with the situation. 241 Indigenous rights came as
a result of both human rights and environmental protection, and have
become a part of today's priorities for the international agenda. 242

International institutions and bodies have realized the necessity of applying

policies, programs and specific rules concerning IPs in some nations. The
World Bank, for example, first adopted a policy on IPs as a result of the
dismal experience of projects in Latin America.243 The World Bank now seeks
to apply its current policy on IPs to some of its projects in Asia. This policy
has provided an influential model for the projects of the Asian Development
Bank.244

The 1987 Philippine Constitution formally recognizes the existence of

ICCs/IPs and declares as a State policy the promotion of their rights within
the framework of national unity and development. 245 The IPRA amalgamates
the Philippine category of ICCs with the international category of IPs, 246 and is
heavily influenced by both the International Labor Organization (ILO)
Convention 169 and the United Nations (UN) Draft Declaration on the Rights
of Indigenous Peoples.247

ILO Convention No. 169 is entitled the "Convention Concerning Indigenous

and Tribal Peoples in Independent Countries" 248 and was adopted on June 27,
1989. It is based on the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights, and many other
international instruments on the prevention of discrimination. 249 ILO
Convention No. 169 revised the "Convention Concerning the Protection and
Integration of Indigenous and Other Tribal and Semi-Tribal Populations in
Independent Countries" (ILO No. 107) passed on June 26, 1957.
Developments in international law made it appropriate to adopt new
international standards on indigenous peoples "with a view to removing the
assimilationist orientation of the earlier standards," and recognizing the
aspirations of these peoples to exercise control over their own institutions,
ways of life and economic development."250

CONCLUSION

The struggle of the Filipinos throughout colonial history had been plagued by
ethnic and religious differences. These differences were carried over and
magnified by the Philippine government through the imposition of a national
legal order that is mostly foreign in origin or derivation. 251 Largely unpopulist,
the present legal system has resulted in the alienation of a large sector of
society, specifically, the indigenous peoples. The histories and cultures of the
indigenes are relevant to the evolution of Philippine culture and are vital to
the understanding of contemporary problems.252 It is through the IPRA that
an attempt was made by our legislators to understand Filipino society not in
terms of myths and biases but through common experiences in the course of
history. The Philippines became a democracy a centennial ago and the
decolonization process still continues. If the evolution of the Filipino people
into a democratic society is to truly proceed democratically, i.e., if the
Filipinos as a whole are to participate fully in the task of continuing
democratization,253 it is this Court's duty to acknowledge the presence of
indigenous and customary laws in the country and affirm their co-existence
with the land laws in our national legal system.

With the foregoing disquisitions, I vote to uphold the constitutionality of the

Indigenous Peoples Rights Act of 1997.
Footnotes
1
Chief Judge, US Court of Appeals for the Seventh Circuit; Senior Lecturer,
University of Chicago Law School.
2
The University of Chicago Law Review, Vol. 67, Summer 2000, No. 3, p. 573.
3
Dominium is distinguished from imperium which is the government
authority possessed by the state expressed in the concept of sovereignty-
Lee Hong Hok v. David, 48 SCRA 372, 377 [1972].
4
Valenton v. Murciano, 3 Phil. 537, 543 [1904]; See also Florencio D.R.
Ponce, The Philippine Torrens System, p. 13 [1964].
5
Antonio H. Noblejas, Land Titles and Deeds, p. 5 [1986]; these grants were
better known as repartimientos and encomiendas. Repartimientos were
handouts to the military as fitting reward for their services to the Spanish
crown. The encomiendas were given to Spaniards to administer and develop
with the right to receive and enjoy for themselves the tributes of the natives
assigned to them.- Ponce, supra, p. 12, citing Benitez, History of the
Philippines, pp. 125-126.
6
Narciso Pena, Registration of Land Titles and Deeds, p. 2 [1994].
7
The Mortgage Law is a misnomer because it is primarily a law on
registration of property and secondarily a mortgage law- Ponce, supra, at 16.
8
Ponce, supra, at 15.
9
3 Phil. 537 [1904].
10
Id. at 540.
11
Id. at 548.
12
Id. at 543-544.
13
Id. at 543.
14
Id. at 542-543. These comments by the court are clear expressions of the
concept that Crown holdings embraced both imperium and dominium—Ma.
Lourdes Aranal-Sereno and Roan Libarios, The Interface Between National
Land Law and Kalinga Land Law, 58 P.L.J. 420, 423 [1983].
15
Id. at 545-546.
16
Id. at 543.
17
Id. at 557.
18
Id. at 553-554; Valenton was applied in Cansino v. Valdez, 6 Phil. 320
[1906]; Tiglao v. Insular Government, 7 Phil. 80 [1906]; and Cariño v. Insular
Government, 7 Phil. 132 [1906]; all decided by the Philippine Supreme Court.
19
Please see Section 70, Act 926.
20
Ponce, supra, at 33.
21
Montano v. Insular Government, 12 Phil. 572 [1909]; also cited in
Ponce, supra, at 32.
22
Archbishop of Manila v. Director of Lands, 27 Phil. 245 [1914]; also cited in
Ponce, supra, at 32.
23
Antonio H. Noblejas, Land Titles and Deeds, p. 250 [1961].
24
Ponce, supra, at 32.
25
Peña, Registration of Land Titles and Deeds, p. 26 [1982]; Noblejas, supra,
at 32.
26
Noblejas, supra, at 32.
27
Ponce, supra, at 123-124; Noblejas, supra, at 33.
28
2 Aruego, The Framing of the Philippine Constitution, p. 592 [1937].
29
Id. at 600.
30
Id. at 600-601.
31
Ibid.
32
Section 7.
33
Section 8.
34
Sections 13 to 20.
35
Sections 21 to 28.
36
Sections 29 to 37.
37
Sections 38 and 40.
38
Sections 74 to 77.
39
Section 69.
40
Section 73.
41
Convention Conerning Indigenous and Tribal Peoples in Independent
Countries, June 27, 1989.
42
Guide to R.A. 8371, published by the Coalition for Ips Rights and ancestral
Domains in cooperation with the ILO and Bilance-Asia Department, p. 4
[1999]—hereinafter referred to as Guide to R.A. 8371.
43
Taken from the list of IPs sbmitted by Rep. Andolana to the house of
Representatives during the deliberations on H.B. No. 9125—Interpellations of
Aug. 20, 1997, pp. 00086-00095. "lost tribes" such as the Lutangan and
Tatang have not been included.
44
How these people came to the Philippines may be explained by two
theories. One view, generally linked to Professor Otley H. Beyer, suggests the
"wave theory"—a series of arrivals in the archipelago bringing in different
types and levels of culture. The Negritos, dark-skinned pygmies, came
between 25,000 to 30,000 B.C. Their cultural remains are preserved by the
Negrito-type Filipinos found in Luzon, Visayas and Mindanao. Their relatively
inferior culture did not enable them to overcome the pressures from the
second wave of people, the Indonesians A and B who came in 5,000 and
3,500 B.C. They are represented today by the Kalinga, Gaddang, Isneg,
Mangyan, Tagbanua, Manobo, Mandaya, Subanon, and Sama. The first group
was pushed inland as the second occupied the coastal and downriver
settlements. The last wave involved Malay migrations between 500 B.C. and
1,500 A.D. they had a more advanced culture based on metal age
technology. They are represented by the Christianized and Islamized Filipinos
who pushed the Indonesian groups inland and occupied much of the coastal,
lowland and downstream areas.

A second view is postulated by Robert Fox, F. Landa Jocana, Alfredo

Evangelista, and Jesus Peralta. Jocano maintains that the Negritos,
Indonesians and Malays stand co-equal as ethnic groups without any one
being dominant, racially or culturally. The geographic distribution of the
ethno-linguistic groups, which shows overlapping of otherwise similar racial
strains in both upland and lowland cultures or coastal and inland
communities, suggests a random and unstructured advent of different kinds
of groups in the archipelago—Samuel K. Tan, A History of the
Philippines, published by the Manila Studies Association, Inc. and the
Philippine National Historical society, Inc., pp. 33-34 [1997]; Teodoro A.
Agoncillo, History of the Filipino People, p. 21 [1990].
45
Tan, supra, at 35-36.
46
Onofre D. Corpuz, The Roots of the Filipino Nation, Philippine Centennial
(1898-1998) Edition, vol. 1, p. 13, Aklahi foundation, Inc. [1989]. It was in
800-1,000 A.D. that the Ifugaos of Northern Luzon built the rice terraces—Id.
at 37.
47
Id. at 5-6.
48
Id. at 13.
49
Teodoro A. Agoncillo, History of the Filipino People, p. 54 [1990].
50
Corpuz, supra, at 5.
51
Id. at 44-45.
52
Agoncillo, supra, at 40.
53
Id. at 40-41.
54
Rafael Iriarte, History of the Judicial System, the Philippine Indigenous Era
Prior to 1565, unpublished work submitted as entry to the Centennial Essay-
Writing Contest sponsored by the National Centennial Commission and the
Supreme Court in 1997, p. 103, citing Perfecto V. Fernandez, Customs Laws
in Pre-Conquest Philippines, UP Law Center, p. 10 [1976].
55
Agoncillo, supra, at 41.
56
Amelia Alonzo, The History of the Judicial System in the Philippines,
Indigenous Era Prior to 1565, unpublished work submitted as entry to the
Centennial Essay-Writing Contest sponsored by the National Centennial
Commission and the Supreme Court in 1997.
57
Agoncillo, supra, at 42.
58
Renato Constantino, A Past Revisited , p. 38 [1975].
59
Samuel K. Tan, A History of the Philippines, published by the Manila Studies
Ass’n., Inc. and the Phil. National Historical Society, Inc., p. 43 [1997].
60
Id.
61
Id. at 43-44.
62
Tan, supra, at 47-48.
63
Id. at 48-49.
64
Cacho v. Government of the P.I., 28 Phil. 616, 625-627 [1914]; see also
Ponce, The Philippine Torrens System, pp. 11-12 [1964]. In Philippine pre-
colonial history, there was only one recorded transaction on the purchase of
land. The Maragtas Code tells us of the purchase of Panay Island by ten
Bornean datus led by Datu Puti from the Atis under Marikudo in the 13th
century. The purchase price for the island was a gold salakot and a long gold
necklace – Agoncillo, supra, at 25.
65
Constantino, supra, at 38.
66
Corpuz, supra, at 39.
67
Resettlement- "bajo el son de la campana" (under the sound of the bell)
or "bajo el toque de la campana" (Under the peal of the bell).
68
People v. Cayat, 68 Phil. 12, 17 [1939].
69
Id. at 17, citing the Decree of the Governor-General of the Philippines, Jan.
14, 1887.
70
Agoncillo, supra, at 80.
71
Id. at 80.
72
Corpuz, supra, at 277-278.
73
Id. at 277.
74
Id., N.B. But see discussion in Cariño v. Insular Government, infra, where
the United States Supreme Court found that the Spanish decrees in the
Philippines appeared to recognize that the natives owned some
land. Whether in the implementation of these decrees the natives’
ancestral rights to land were actually respected was not discussed
by the U.S. Supreme Court; see also Note 131, infra.
75
Tan, supra, at 49-50.
76
Id. at 67.
77
Id. at 52-53.
78
Id. at 53.
79
Id. at 55.
80
People v. Cayat, 68 Phil. 12, 17 [1939].
81
Memorandum of the Secretary of the Interior, quoted in Rubi v. Provincial
Board of Mindoro, 39 Phil. 660, 714 [1919]; also cited in People v.
Cayat, supra, at 17-18.
82
Rubi v. Provincial Board of Mindoro, supra, at 693.
83
Charles Macdonald, Indigenous Peoples of the Philippines: Between
Segregation and Integration, Indigenous Peoples of Asia, p. 348, ed. by R.H.
Barnes, A. Gray and B. Kingsburry, pub. by Association for Asian Studies
[1995]. The BNCT made a Bontok and subanon ethnography, a history of
Sulu genealogy, and a compilation on unhispanized peoples in northern
Luzon.—Owen J. Lynch, Jr., The Philippine Colonial Dichotomy: Attraction and
Disenfranchisement, 63 P. L. J. 139-140 [1988].
84
R.A. No. 1888 of 1957.
85
See People v. Cayat, supra, at 21; See also Rubi v. Provincial Board of
Mindoro, 39 Phil. 660, 694 [1919]
86
MacDonald, Indigenous Peoples of the Philippines, supra, at 351.
87
The construction of the Ambuklao and Binga dams in the 1950’s resulted in
the eviction of hundreds of Ibaloi families – Cerilo Rico S. Abelardo, Ancestral
Domain Rights: Issues, Responses, and Recommendations, Ateneo Law
Journal, vol. 38, No. 1, p. 92 [1993].
88
Section 11, Art. XV, 1973 Constitution.
89
Presidential Decrees Nos. 1017 and 1414.
90
The PANAMIN, however, concentrated funds and resources on image-
building, publicity, and impact projects. In Mindanao, the agency resorted to
a policy of forced resettlement on reservations, militarization and
intimidation- MacDonald, Indigenous Peoples of the Philippines, supra, at
349-350.
91
No occupancy certificates were issued, however, because the government
failed to release the decree’s implementing rules and regulations-
Abelardo, supra, at 120-121.
92
Id., Note 177.
93
Id., at 93-94.
94
MacDonald, Indigenous People of the Philippines, supra, at 351.
95
E.O. Nos. 122-A, 122-B and 122-C. The preamble of E.O. No. 122-B states:
"Believing that the new government is committed to formulate more
vigorous policies, plans, programs, and projects for tribal Filipinos, otherwise
known as Indigenous Cultural Communities, taking into consideration their
communal aspirations, customs, traditions, beliefs, and interests, in order to
promote and preserve their rich cultural heritage and insure their
participation in the country’s development for national unity; xxx"
96
Article II, sec. 22; Article VI, sec. 5, par. 2; Article XII, sec. 5; Article XIII,
sec. 6; Article XIV, sec. 17; and Article XVI, sec. 12.
97
MacDonald, Indigenous Peoples of the Philippines, supra, at 345.
98
Samuel K. Tan, A History of the Philippines, p. 54 [1997].
99
Cordillera Studies Program, Land Use and Ownership and Public Policy in
the Cordillera, 29-30 [n.d.]; also cited in Dante B. Gatmaytan, Ancestral
Domain Recognition in the Philippines: Trends in Jurisprudence and
Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 47-48 [1992].
100
Abelardo, Ancestral Domain Rights, supra, at 98-99, citing Ponciano L.
Bennagen, Indigenous Attitudes Toward Land and Natural Resources of Tribal
Filipinos, 31 National Council of Churches in the Philippines Newsletter, Oct.-
Dec. 1991, at 4-9.

Id. at 99, citing June Prill-Brett, Bontok Land Tenure (UP Law library,
101

mimeographed).

Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface of National

102

Land Law and Kalinga Law, 58 P.L.J. 420, 440-441 [1983].

103
Ibid.
104
Ibid.
105
Ibid.

Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface, supra, at

106

420.
107
Senate Bill No. 1728 was co-sponsored by Senator Macapagal-Arroyo and
co-authored by Senators Alvarez, Magsaysay, Revilla, Mercado, Enrile,
Honasan, Tatad, Maceda, Shahani, Osmena and Romulo.

The Eighth Congress, through Senators Rasul, Estrada and Romulo filed a bill
to operationalize the mandate of the 1987 Constitution on indigenous
peoples. The bill was reported out, sponsored an interpellated but never
enacted into law. In the Ninth Congress, the bill filed by Senators Rasul and
Macapagal-Arroyo was never sponsored and deliberated upon in the floor.
108
Sponsorship Speech of Senator Flavier, Legislative History of SBN 1728,
Tenth Congress, Second Regular Session, Senate, Oct. 16, 1996, pp. 15-16.
109
Id. at 12.
110
Id. at 17-18.
111
Id. at 13.

Journal of the Tenth Congress of the Philippines, Senate, Session No. 5,

112

Aug. 5-6, 1997, pp. 86-87.

Co-authors of the bill were Reps. Ermita, Teves, Plaza, Calalay, Recto, Fua,
113

Luciano, Abad, Cosalan, Aumentado, de la Cruz, Bautista, Singson,

Damasing, Romualdo, Montilla, Germino, Verceles—Proceedings of Sept. 4,
1997, pp. 00107-00108.

Sponsorship speech of Rep. Andolana of House Bill No. 9125, March 20,
114

1997.
115
Interpellation of Aug. 20, 1997, 6:16 p.m., p. 00061.
116
Section 3 [a], IPRA.
117
Section 3 [b], IPRA.
118
Guide to R.A. 8371, p. 14.
119
Section 44 [e], IPRA.
120
Section 51, IPRA.
121
Guide to R.A. 8371, p. 15.
122
A CADT refers to a title formally recognizing the right of possession and
ownership of ICCs/IPs over their ancestral domains identified and delineated
in acordance with the IPRA—Rule II [c], Rules & Regulations Implementing the
IPRA, NCIP Admin. Order No. 1.
123
Section 53 [a], IPRA.
124
A CALT refers to a title formally recognizing the rights of the ICCs/IPs over
their ancestral lands- Rule II [d], Implementing Rules, NCIP A.O. No. 1.
125
Section 52 [k], IPRA.
126
Section 3 [1], IPRA.
127
Section 11, IPRA.
128
Ibid.
129
41 Phil. 935 (1909), 212 U.S. 449, 53 L.Ed. 594.
130
Sponsorship Speech of Senator Juan Flavier, Leg. History of SBN 1728,
Tenth Congress, Second Regular Session, Oct. 16, 1996, p. 13.
131
It was the practice of the Spanish colonial government not to issue titles
to Igorots—Owen J. Lynch, Jr., Invisible Peoples and a Hidden Agenda: The
Origins of Contemporary Philippine Land Laws (1900-1913), 63 P.L.J. 249, 288
[1988], citing the testimony of Benguet Provincial Governnor William F. Pack,
Records at 47, Cariño.
132
Maura Law or the Royal Decree of Feb. 13, 1894.
133
Later named Camp John Hay.
134
Lynch, Invisible Peoples, supra, at 288-289.
135
7 Phil. 132 [1906].
136
In 1901, Cariño had entered into a promissory agreement with a U.S.
merchant in Manila. The note obliged Cariño to sell the land at issue "as soon
as he obtains from the Government of the United States, or its
representatives in the Philippines, real and definitive title." See Lynch,
Invisible Peoples, supra, at 290, citing Government’s Exhibit G, Records, at
137-138, Cariño.
137
Cariño v. Insular Government, supra, at 939.
138
Ibid.
139
Id. at 940.
140
Id. at 941.
141
Id. at 941-942.

Aranal-Sereno and Libarios, The Interface Between Kalinga Land Law,

142

supra at 428-This artcile was one of those circulated among the

Constitutional Commissioners in the formulation of Sec. 5, Article XII of the
1987 Constitution (4 Record of the Constitutional Commission 33).
143
Id. at 944.
144
Certificate of Title No. 2 covering the 148 hectares of Baguio Municipality
was issued not in the name of Cariño who died on June 6, 1908, but to his
lawyers John Hausserman and Charles Cohn and his attorney-in-fact Metcalf
Clarke. Hausserman, Cohn and Clarke sold the land to the U.S. Government
in a Deed of Quitclaim-Richel B. Langit, Igorot Descendants Claim Rights to
Camp John Hay, Manila Times, p. 1, Jan. 12, 1998.
145
Id. at 939.
146
57 P.L.J. 268, 293-296 [1982].

From 1987 to 1988, Prof. Lynch allowed the P.L.J. to publish parts of his
147

doctoral dissertation at the Yale Law School entitled "Invisible Peoples: A

History of Philippine Land Law." Please see the Legal Bases of Philippine
Colonial Sovereignty: An Inquiry, 62 P.L.J. 279 [1987]; Land Rights, Land Laws
and Land Usurpation: The Spanish Era (1568-1898), 63 P.L.J. 82 [1988]; The
Colonial Dichotomy: Attraction and Disenfranchisement, 63 P.L.J. 112;
Invisible Peoples and a Hidden Agenda: The Origins of Contemporary
Philippine Land Laws (1900-1913), 63 P.L.J. 249.
148
"Native title" is a common law recognition of pre-existing aboriginal land
interests in Autsralia- Maureen Tehan, Customary Title, Heritage Protection,
and Property Rights in Australia: Emerging Patterns of Land Use in the Post-
Mabo Era, 7 Pacific Rim Law & Policy Journal, No. 3, p. 765 [June 1998].
149
Lynch, Native Titles, supra, Note 164, p. 293.
150
39 Phil. 660 [1919].
151
Id. at 712-713.
152
Id. at 694.
153
Id. at 700.
154
42 C.J.S., Indians, Sec. 29 [1944 ed.].

There are 3 kinds of Indian reservations: (a) those created by treaties prior
155

to 1871; (b) those created by acts of Congress since 1871; and (c) those
made by Executive Orders where the President has set apart public lands for
the use of the Indians in order to keep them within a certain territory- 42
C.J.S., Indians, Sec. 29 citing Sioux Tribe of Indians v. U.S. 94 Ct. Cl. 150, 170,
certiorari granted 62 S. Ct. 631, 315 U.S. 790, 86 L. Ed. 1194, affirmed 62 S.
Ct. 1095, 316 U.S. 317, 86 L. Ed. 1501. It is observed that the first two
kinds may include lands possessed by aboriginal title. The last kind
covers Indian reservations proper.

Until 1871, Indian tribes were recognized by the United States as possessing
the attributes of nations to the extent that treaties were made with them. In
that year, however, Congress, by statute, declared its intention thereafter to
make the Indian tribes amenable directly to the power and authority of the
United States by the immediate exercise of its legislative power over them,
instead of by treaty. Since then, Indian affairs have been regulated by acts if
Congress and by contracts with the Indian tribes practically amounting to
treaties- 41 Am Jur 2d, Indians, Sec. 55 [1995 ed].
156
42 C.J.S. Indians, Sec. 28 [1944 ed.].

Ibid.; see also U.S. v. Santa Fe Pac. R. Co., Ariz., 62 S. Ct. 248, 314 U.S.
157

339, 86 L. Ed. 260 [1941].

158
Ibid.
159
8 Wheat 543, 5 L. Ed. 681 [1823].
160
Id. at 680.
161
Id. at 689.

Id. at 696; see also 41 ALR Fed 425, Annotation: Proof and Extinguishment
162

of Aboriginal Title to Indian Lands, Sec. 2[a] [1979].

Buttz v. Northern Pac.R. Co., Dak., 7 S. Ct. 100, 119 U.S. 55, 30 L. Ed. 330,
163

335 [1886].

Lynch, Native Title, supra, at 293-294; Cohen, Original Indian Title, 32

164

Minn. L.R. 48-49 [1947].

165
6 Pet 515, 8 L.Ed. 483 [1832].
166
Id. at 499.
167
Id. at 500.
168
Id. at 501.
169
The title of the government to Indian lands, the naked fee, is a sovereign
title, the government having no landlord from whom it holds the fee-
Shoshone Tribe of Indians of Wind River Reservation in Wyoming v. U.S., 85
Ct. Cl. 331, certiorari granted U.S. v. Shoshone Tribe of Indians, 58 S. Ct. 609,
303 U.S. 629, 82 L. Ed. 1090, affirmed 58 S. Ct. 794, 304 U.S. 111, 82 L. Ed.
1213, 1218-1219 [1938].

Buttz v. Northern Pac. R. Co., Dak., at 30 L. Ed. 330, 335; Beecher v.

170

Wetherby, Wis., 95 U.S. 517, 24 L. Ed. 440, 441 [1877]; see also 42 C.J.S.,
Indians, Sec. 28 [1944 ed.].

Annotation, Proof and Extinguishment of Aboriginal title to Indian Lands,

171

41 ALR Fed 425, Sec. 2 [b] [1979]- hereinafter cited as Aboriginal Title to
Indian Lands.

Ibid.; see also Tee Hit Ton Indians v. U.S., 348 U.S. 272, 99 L. Ed. 314, 320,
172

75 S. Ct. 313 [1955], reh den 348 U.S. 965, 99 L. Ed. 753, 75 S. Ct. 521.
173
Ibid.; Tee Hit Ton Indians v. U.S., at 99 L. Ed. 320.

Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 39 L. Ed. 2d 73,
174

94 S Ct. 772 [1974]; U.S. v. Alcea Bank of Tillamooks, 329 U.S. 40, 91 L. Ed.
29. 67 S. Ct. 167 [1946].

For compensation under the Indian Claims Commission Act, the proof of
175

aboriginal title rests on actual, exclusive and continuous use and occupancy
for a long time prior to the loss of the property. (The Indian Claims
Commission Act awards compensation to Indians whose aboriginal titles were
extinguished by the government through military conquest, creation of a
reservation, forced confinement of Indians and removal of Indians from
certain portions of the land an the designation of Indian land into forest
preserve, grazing district, etc.) - Aboriginal Title to Indian Lands, supra, at
Secs. 2[a], 3[a], pp. 431, 433, 437.
176
Aboriginal Title to Indian Lands, supra, at Sec. 2[b], p. 435.
177
41 Am Jr 2d, Indians, Sec. 59 [1995 ed.].

An allotment of Indian land contains restrictions on alienation of the land.

178

These restrictions extend to a devise of the land by will- Missouri, K. & T.R.
Co. v. U.S., 235 U.S. 37, 59 L. Ed. 116,. 35 S. Ct. 6 [1914]; A railroad land
grant that falls within Indian land is null and void- Northern P. R. Co. v. U.S.,
227 U.S. 355, 57 L.Ed. 544,33 S. Ct. 368 [1913]; Portions of Indian land
necessary for a railroad right of way were, by the terms of the treaty,
declared "public land," implying that land beyond the right of way was
private- Kindred v. Union P.R. Co., 225 U.S. 582, 56 L. Ed. 1216, 32 S. Ct. 780
[1912]; see also 41 Am Jur 2d, Indians, Sec. 58 [1995 ed].
179
Aboriginal Title to Indian Lands, supra, at Sec. 2[a], p. 433.
180
42 C.J.S. Indians, Sec. 29 [1944 ed.]
181
Ibid.
182
North American Indians have made much progress in establishing a
relationship with the national government and developing their own laws.
Some have their own government-recognized constitutions. Usually the
recognition of Indian tribes depends on whether the tribe has a reservation.
North American tribes have reached such an advanced stage that the main
issues today evolve around complex jurisdictional and litigation matters.
Tribes have acquired the status of sovereign nations within another nation,
possessing the right to change and grow- Jose Paulo Kastrup, The
Internationalization of Indigenous Rights from the Environmental and Human
Rights Perspective, Texas International Law Journal, vol. 32: 97, 104 [1997].
183
Lynch, Native Title, supra, at 293.
184
Dante Gatmaytan, Ancestral Domain Recognition in the Philippines: Trends
in Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 43, 40 [Aug.
1992]; see also Tee Hit Ton Indians v. U.S., supra, at 320.
185
Ibid.
186
D. Gatmaytan, supra, citing Churchill, The Earth is Our Mother: Struggles
for American Indian Land and Liberation in the Contemporary United States,
The State of Native America: Genocide, Colonization and Resistance 139 (M.
Jaimes 1992); and Indian Law Resource Center, United States Denial of Indian
Property Rights: A Study in Lawless Power and Racial Discrimination,
Rethinking Indian Law 15 (National Lawyers Guild, Committee on Native
American Struggles 1982).

Id., Note 28, stating that some earlier decisions of the U.S. Supreme Court
187

have held that Congress is subject to the strictures of the Constitution in

dealing with Indians. When an Indian property is taken for non-Indian use,
the U.S. government is liable for payment of compensation, and an
uncompensated taking may be enjoined. F. Cohen, Handbook of Federal
Indian Law 217 [1982], citing Shoshone Tribe v. U.S. 299 U.S. 476 [1937];
Choate v. Trapp, 224 U.S. 665 [1912]; and Lane v. Pueblo of Santa Rosa, 249
U.S. 110 [1919].
188
See Discussion, infra, Part IV (c) (2).
189
Susi v. Razon, 48 Phil. 424 [1925]; Herico v. Dar, 95 SCRA 437 [1980].
190
Ibid.
 Director of Lands v. Intermediate Appellate Court, 146 SCRA 509 [1986];
191

Director of Lands v. Buyco, 216 SCRA 78 [1992]; Republic v. Court of Appeals

and Lapina, 235 SCRA 567 [1994].
192
75 Phil. 890 [1946].
193
Id. at 892.
194
Sec. 48 [b], C.A. 141.

Sec. 48 [c], C.A. 141, as amended. This provision was added in 1964 by
195

R.A. 3872.
196
Section 12, IPRA.

"Time immemorial" refers "to a period of time when as far back as memory
197

can go, certain ICCs/Ips are known to have occupied, possessed in the
concept of owner, and utilized a defined territory devolved to them, by
operation of customary law or inherited from their ancestors, in accordance
with their customs and traditions." (Sec. 3 [p], IPRA).
198
Section 2, C.A. 141.
199
Section 8, C.A. 141.
200
The classification of ancestral lands 18% in slope or over as alienable in
the IPRA is an exception to Section 15, P.D. 705, the Revised Forestry Code.

Charles MacDonald, Indigenous Peoples of the Philippines: Between

201

Segregation and Integration, Indigenous Peoples of Asia, supra, at pp. 345,

350.
202
Section 5, Article XII, 1987 Constitution.
203
Words in bold were amendments introduced by R.A. 3872 in 1964.

Words in bold were amendments introduced by R.A. 3872 on June 18,

204

1964. On January 25, 1977, however, Sec. 48 [b] and 48 [c] were further
amended by P.D. 1073 stating that these provisions on cultural minorities
apply only to alienable and disposable lands of the public
domain- Please see Republic v. CA and Paran, 201 SCRA 1, 10-11 [1991].
205
Jus utendi, jus fruendi.
206
Jus abutendi.
207
Jus disponendi.
208
Jus vindicandi. Please see Tolentino, Civil Code, vol. II, pp. 45-46 [1992];
see also Tolentino, vol. I, pp. 12-14.
209
Sec. 55, IPRA provides:

"Sec. 55. Communal rights.- Subject to Section 56 hereof, areas within the
ancestral domains, whether delineated or not, shall be presumed to be
communally held: provided, That communal rights under this Act
shall not be construed as co-ownership as provided in Republic Act No. 386,
otherwise known as the New Civil Code."
210
Ibid.
211
Article 494, Civil Code.
212
Antonio M. La Vina, Arguments for Communal Title, Part II, 2 Phil. Nat. Res.
L. J. 23 [Dec. 1989].
213
Section 11, Corporation Code.
214
Sections 60-72, Corporation Code.

Section 117, Corporation Code. Please see also La Vina, Arguments for
215

Communal Title, Part II, supra, at 23.

216
Section 5, par. 2, Article XII, 1987 Constitution.
217
Customary law is recognized by the Local Government Code of 1991 in
solving disputes among members of the indigenous communities, viz:

"Sec. 412 (c) Conciliation among members of indigenous cultural

communities.- The customs and traditions of indigenous cultural
communities shall be applied in settling disputes between members of the
cultural communities."
218
Law writes custom into contract-Hongkong & Shanghai Bank v. Peters, 16
Phil. 284 [1910].

The Civil Code provides:

"Art. 11. Customs which are contrary to law, public order or public policy
shall not be countenanced."

"Art. 12. A custom must be proved as a fact, according to the rules of

evidence."

Article 78 on marriages between Mohammedans or pagans who live in the

219

non-Christian provinces- this is now Art. 33 of the Family Code; Art. 118, now
Art. 74 of the Family Code on property relations between spouses; Art. 577
on the usufructuary of woodland; Art. 657 on easement of right of way for
passage of livestock; Arts. 678, 1315, 1376, 1522, 1564 and 1577. Please
see Aquino, Civil Code, vol. 1, p. 25.
220
Castle Bros. v. Gutierrez Hermanos, 11 Phil. 629 [1908]; In Re: Firm Name
of Ozaeta Romulo, 92 SCRA 1 [1979]; Yao Kee v. Sy-Gonzales, 167 SCRA 736
[1988]; Please see Aquino, Civil Code, vol. 1, p. 26 for a list of other cases.
221
This situation is analogous to the Muslim code or the Code of Muslim
Personal Laws (P.D. 1083) which took effect on February 4, 1977 despite the
effectivity of the Civil Code and the Family Code. P.D. 1083 governs persons,
family relations and succession among Muslims, the adjudication and
settlement of disputes, the organization of the Shari’a courts, etc.
222
Mariflor P. Pagusara, The Kalinga Ili: Cultural-Ecological Reflections on
Indigenous Theora and Praxis of Man-Nature Relationship, Dakami Ya Nan
Dagami, p. 36, Papers and Proceedings of the 1st Cordillera Muti-Sectoral
Land Congress, 11-14 March 1983, Cordillera Consultative Committee
[1984].
223
Section 2, Article XII.
224
A "co-production agreement" is defined as one wherein the government
provides input to the mining operation other than the mineral resource-
Section 26 (b), R.A. 7942, the Philippine Mining Act of 1995.
225
A "joint venture agreement" is one where a joint-venture company is
organized by the government and the contractor with both parties having
equity shares, and the government entitled to a share in the gross output-
Section 26 (c), R.A. 7942.
226
A mineral "production-sharing agreement" is one where the government
grants to the contractor the exclusive right to conduct mining operations
within a contract area and shares in the gross output. The contractor
provides the financing, technology, management and personnel necessary
for the implementation of the agreement- Section 26 (a), R.A. 7942.
227
Section 26, R.A. 7942.
228
Section 3 [d], People's Small-Scale Mining Act of 1991 (R.A. 7076)
provides:

"Sec. 3 [d] 'Small-scale mining contract' refers to co-production, joint venture

or mineral production sharing agreement between the State and a small-
scale mining contractor for the small-scale utilization of a plot of mineral
land."
229
Section 3 [b], R.A. 7076.
230
NCIP Administrative Order No. 1, Series of 1998.
231
In Republic v. Court of Appeals, 160 SCRA 228, 239 [1988],
Cruz, J., ponente, it was declared that if a person is the owner of a piece of
agricultural land on which minerals are discovered, his ownership of such
land does not give him the right to extract or utilize the said minerals without
the permission of the State to which such minerals belong- also cited in H. de
Leon, Phil. Constitutional Law, Principles and Cases, vol. 2, pp. 800-801
[1999].
232
See Ground I, Grounds to Issue Writ of Prohibition, Petition, p. 14.
233
Section 7 (b) is subject to Section 56 of the same law which provides:

"Sec. 56. Existing Property Rights Regimes.- Property rights within the
ancestral domains already existing and/or vested upon effectivity of this Act,
shall be recognized and respected."

The law took effect 15 days upon publication in the O.G. or in any 2
newspapers of general circulation (Sec. 84, IPRA). The IPRA was published in
the Chronicle and Malaya on Nov. 7, 1997.
234
Section 9 of the IPRA also gives the ICCs/IPs the ff. responsibilities over
their ancestral domains:

(a) Maintain Ecological Balance- To preserve, restore, and maintain a

balanced ecology in the ancestral domain by protecting the flora and fauna,
watershed areas, and other reserves;

(b) Restore Denuded Areas.- To actively initiate, undertake and participate in

the reforestation of denuded areas and other development programs and
projects subject to just and reasonable renumeration;

(c) Observe Laws.- To observe and comply with the provisions of this Act and
the rules and regulations for its effective implementation."

Section 58 of the same law also mandates that ancestral domains or portions
thereof, which are found to be necessary for critical watersheds, mangroves,
wildlife sanctuaries, wilderness, protected areas, forest cover, or
reforestation as determined by appropriate agencies with the full
participation of the ICCs/IPs concerned shall be maintained, managed and
developed for such purposes. The ICCs/IPs concerned shall be given the
responsibility to maintain, develop, protect and conserve such areas with the
full and effective assistance of government agencies.

Hector S. de Leon, Textbook on the New Philippine Constitution pp. 473-

235

474 [1987] citing the 1986 UP Law Constitution Project, The National
Economy and Patrimony, p. 11.

Under the Small-Scale Mining Act of 1991, "small-scale mining" refers to

236

"mining activities which rely heavily on manual labor using simple

implements and methods and do not use explosives or heavy mining
equipment"- Section 3 [b], R.A. 7076.
237
See infra., pp. 77-79?.
238
Andrew Gray, The Indigenous Movement in Asia, Indigenous Peoples of
Asia, ed. By Barnes, Gray and Kingsbury, pub. By Ass'n. for Asian Studies, at
35, 42 [1995].
239
E.g. International Indian Treaty Council, World Council of IPs.
240
Gray, The Indigenous Movement in Asia, supra, at 44, citing the
International Work Group for Indigenous Affairs, 1988.
241
Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the
Environmental and Human Rights Perspective, 32 Texas International Law
Journal 97, 102 [1997].
242
Benedict Kingsbury, "Indigenous Peoples" in International Law: A
Constructivist Approach to the Asian Controversy, The American Journal of
International Law, vol. 92: 414, 429 [1998].
243
The World Bank supported the Chico Dam project. Due to the Kalingas'
opposition, the WB pulled out of the project but the conflict between the
Philippine government and the natives endured long after- Marcus
Colchester, Indigenous Peoples' Rights and Sustainable Resource Use in
South and Southeast Asia, Indigenous Peoples of Asia, supra, pp. 59, 71-72.
244
Kingsbury, supra, at 417.
245
Section 22, Article II, 1987 Constitution.

Interpellation of Senator Flavier on S.B. No. 1728, Deliberation on Second

246

Reading, November 20, 1996, p. 20.

247
Guide to R.A. 8371, Coalition for IPs Rights and Ancestral Domains, the
International Labor Organization, and the ILO-Bilance- Asia Dep't, p. 3 [1999].
248
Also referred to as the "Indigenous and Tribal Peoples Convention, 1989."
249
See Introduction to ILO Convention No. 169, par. 4.
250
Id., pars. 5 and 6.
251
Perfecto V. Fernandez, Towards a Definition of National Policy on
Recognition of Ethnic Law within the Philippine Legal Order, 55 P.L.J. 383, 385
[1980].
252
Samuel K. Tan, A History of the Philippines, Manila Studies Association,
Inc. and the Phil. National Historical Society, Inc., p. 6 [1997].
253
Fernandez, supra, at 385, 391.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

VITUG, J.:

An issue of grave national interest indeed deserves a proper place

in any forum and, when it shows itself in a given judicial
controversy, the rules of procedure, like locus standi, the propriety
of the specific remedy invoked, or the principle of hierarchy of
courts, that may ordinarily be raised by party-litigants, should not
be so perceived as good and inevitable justifications for advocating
timidity, let alone isolationism, by the Court.

A cardinal requirement, to which I agree, is that one who invokes the Court’s
adjudication must have a personal and substantial interest in the
dispute;1 indeed, the developing trend would require a logical nexus between
the status asserted and the claim sought to be adjudicated in order to ensure
that one is the proper and appropriate party to invoke judicial power. 2 The
rule requires a party to aptly show a personal stake in the outcome of the
case or an injury to himself that can be redressed by a favorable decision so
as to warrant his invocation of the Court’s jurisdiction and to render legally
feasible the exercise of the Court’s remedial powers in his behalf. If it were
otherwise, the exercise of that power can easily become too unwieldy by its
sheer magnitude and scope to a point that may, in no small measure,
adversely affect its intended essentiality, stability and consequentiality.

Nevertheless, where a most compelling reason exits, such as when the

matter is of transcendental importance and paramount interest to the
nation,3 the Court must take the liberal approach that recognizes the legal
standing of nontraditional plaintiffs, such as citizens and taxpayers, to raise
constitutional issues that affect them.4 This Court thus did so in a case5 that
involves the conservation of our forests for ecological needs. Until and
exact balance is struck, the Court must accept an eclectic notion
that can free itself from the bondage of legal nicety and hold
trenchant technicalities subordinate to what may be considered to
be of overriding concern.

The petition seeks a declaration by the Court of unconstitutionality of certain

provisions of Republic Act No. 8371, a law that obviously is yet incapable of
exact equation in its significance to the nation and its people now and in the
generations yet to come. Republic Act No. 8371, otherwise also known as the
Indigenous Peoples Rights Act of 1997 ("IPRA"), enacted into law in 1997 and
made effective on 22 November 1997, is apparently intended to be a
legislative response to the 1987 Constitution which recognizes the rights of
indigenous cultural communities "within the framework of national unity and
development"6 and commands the State, "subject to the provisions of
this Constitution and national development policies and programs,"
to protect the rights of indigenous cultural communities to their ancestral
lands in order to ensure their economic, social, and cultural well-being. 7

Among the assailed provisions in IPRA is its Section 3(a) which defines
"ancestral domains" to embrace "all areas generally belonging to
ICCs/IPs comprising lands, inland waters, coastal areas, and natural
resources" including "ancestral lands, forest, pasture, residential,
agricultural, and other lands individually owned whether alienable
and disposable or otherwise," over which indigenous cultural
communities/indigenous peoples ("ICCs/IPs") could exercise virtual
ownership and control.

IPRA effectively withdraws from the public domain the so-called

ancestral domains covering literally millions of hectares. The notion
of community property would comprehend not only matters of
proprietary interest but also some forms of self-governance over
the curved-out territory. This concept is elaborated in Section 7 of the law
which states that the "rights of ownership and possession of ICCs/IPs to their
ancestral domains shall be recognized and protected," subsumed under
which would encompass the right of ownership (paragraph a); the right
to develop, control and use lands and natural resources, including
"the right to negotiate the terms and conditions for the exploration
of natural resources in the areas for the purpose of ensuring ecological,
environmental protection and the conservation measures, pursuant to
national and customary laws;" (par. b); the right to stay in the
territories (par. c); the right to return to their abandoned lands in
case of displacement (par. d); the right to regulate entry of migrants
(par. e); the right to claim parts of ancestral domains previously
reserved (par. g); and the right to resolve land conflicts in
accordance primarily with customary law (par. h). Concurrently,
Section 57 states that ICCs/IPs shall be given "priority rights in the
harvesting, extraction, development or exploitation of any natural resources
within the ancestral domains." These provisions of IPRA, in their
totality, are, in my view, beyond the context of the fundamental law
and virtually amount to an undue delegation, if not an unacceptable
abdication, of State authority over a significant area of the country
and its patrimony.

Article XII of the 1987 Constitution expresses that all "lands of the public
domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forest or timber, wildlife,
flora and fauna, and other natural resources are owned by the
State," and, with the exception of agricultural lands, "shall not be
alienated." It ordains that the "exploration, development, and
utilization of natural resources shall be under the full control and
supervision of the State."8

These provisions had roots in the 1935 Constitution which, along with some
other specific mandates in the 1935 Constitution, forming Article XII under
the title "Conservation and Utilization of Natural Resources", were derived
largely from the report of the Committee on Nationalization and Preservation
of Lands and other Natural Resources.9 According to the Committee report,
among the principles upon which these provisions were based, was "that the
land, minerals, forest and other natural resources constitute the exclusive
heritage of the Filipino Nation," and should thereby "be preserved for those
under the sovereign authority of the Nation and for their posterity." 10 The
delegates to the 1934 Constitutional Convention were of the unanimous view
that the "policy on natural resources, being fundamental to the nation’s
survival should not be left to the changing mood of the lawmaking body." 11

The 1987 Constitution, like the precursor provisions in the 1935 and 1973
Constitutions, thus expresses this regalian doctrine of the old, and
the domainial doctrine of the new, that all lands and natural resources
belong to the state other than those which it recognizes to be of private
ownership. Except for agricultural lands of the public domain which
alone may be alienated, forest or timber, and mineral lands, as well
as all other natural resources, of the country must remain with the
state, the exploration, development and utilization of which shall be
subject to its full control and supervision albeit allowing it to enter into
co-production, joint venture or production-sharing agreements, or into
agreements with foreign-owned corporations involving technical or financial
assistance for large-scale exploration, development and utilization. 12

The decision of the United States Supreme Court in Cariño vs. Insular
Government,13 holding that a parcel of land held since time immemorial by
individuals under a claim of private ownership is presumed never to have
been public land and cited to downgrade the application of the regalian
doctrine, cannot override the collective will of the people expressed in
the Constitution. It is in them that sovereignty resides and from them that all
government authority emanates.14 It is not then for a court ruling or any
piece of legislation to be conformed to by the fundamental law, but it is for
the former to adapt to the latter, and it is the sovereign act that must,
between them, stand inviolate.

The second paragraph of Section 5 of Article XII of the Constitution allows

Congress to provide "for the applicability of customary laws governing
property rights or relations in determining the ownership and extent of
ancestral domains." I do not see this statement as saying that Congress may
enact a law that would simply express that "customary laws shall govern"
and end it there. Had it been so, the Constitution could have itself easily
provided without having to still commission Congress to do it. Mr. Chief
Justice Davide has explained this authority of Congress, during the
deliberations of the 1986 Constitutional Convention, thus:

"Mr. Davide. x x x Insofar as the application of the customary laws

governing property rights or relations in determining the ownership and
extent of the ancestral domain is concerned, it is respectfully submitted that
the particular matter must be submitted to Congress. I understand that the
idea of Comm. Bennagen is for the possibility of the codification of these
customary laws. So before these are codified, we cannot now mandate that
the same must immediately be applicable. We leave it to Congress to
determine the extent of the ancestral domain and the ownership thereof in
relation to whatever may have been codified earlier. So, in short, let us not
put the cart ahead of the horse."15

The constitutional aim, it seems to me, is to get Congress to look

closely into the customary laws and, with specificity and by proper
recitals, to hew them to, and make them part of, the stream of laws.
The "due process clause," as I so understand it in Tanada vs. Tuvera16 would
require an apt publication of a legislative enactment before it is permitted to
take force and effect. So, also, customary laws, when specifically enacted to
become part of statutory law, must first undergo that publication to render
them correspondingly binding and effective as such.

Undoubtedly, IPRA has several good points, and I would respectfully

urge Congress to re-examine the law. Indeed, the State is exhorted
to protect the rights of indigenous cultural communities to their
ancestral lands, a task that would entail a balancing of interest
between their specific needs and the imperatives of national
interest.

WHEREFORE, I vote to grant the petition.

Footnotes
1
People vs. Vera, 65 Phil. 56, 89; Macasiano vs. National Housing Authority,
224 SCRA 236, 244.
2
Am Jur § 189, p. 591, S. vD., 410 US 641, 35 L Ed 2d 536, 93 S Ct 1146.
3
Legaspi vs. Civil Service Commission, 150 SCRA 530, 540; Tañada vs.
Tuvera, 136 SCRA 27, 36, 37.
4
Defensor Santiago, Miriam, Constitutional Law, First Edition, 1994, p. 11;
see also Rev. Fr. Joaquin Bernas, S.J., on the 1987 Constitution of the Republic
of the Philippines, 1996 Ed., pp. 336-337.
5
Oposa vs. Factoran, Jr., 224 SCRA 792.
6
Art. 11, Sec. 22.
7
Art. XII, Sec. 5.
8
Sec. 2.
9
II Aruego, The Framing of the Philippine Constitution, p. 594.
10
Ibid., p. 595.
11
Ibid., p. 600.
12
CONST., Art. XII, Sec. 2; Miners Association of the Philippines, Inc., vs.
Factoran, Jr., 240 SCRA 100.
13
41 Phil. 935.
14
CONST., Art. II, Sec. 1.
15
4 Record of the Constitutional Commission 32.
16
146 SCRA 446.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

KAPUNAN, J.:

You ask if we own the land. . . How can you own that which will outlive you?
Only the race own the land because only the race lives forever. To claim a
piece of land is a birthright of every man. The lowly animals claim their
place; how much more man? Man is born to live. Apu Kabunian, lord of us all,
gave us life and placed us in the world to live human lives. And where shall
we obtain life? From the land. To work (the land) is an obligation, not merely
a right. In tilling the land, you possess it. And so land is a grace that must be
nurtured. To enrich it and make it fructify is the eternal exhortation of Apu
Kabunian to all his children. Land is sacred. Land is beloved. From its womb
springs …life.

- Macli-ing Dulag, Chieftain of the Kalinga Tribe (quoted in Ponciano L.

Bennagen, "Tribal Filipinos" in Indigenous View of Land and the Environment,
ed. Shelton H. Davis, the World Bank Discussion Papers, No. 188, pp. 71-72.)

It is established doctrine that a statute should be construed whenever

possible in harmony with, rather than in violation of, the Constitution. 1 The
presumption is that the legislature intended to enact a valid, sensible and
just law and one which operates no further than may be necessary to
effectuate the specific purpose of the law.2

The challenged provisions of the Indigenous Peoples Rights Act (IPRA) must
be construed in view of such presumption of constitutionality. Further, the
interpretation of these provisions should take into account the purpose of the
law, which is to give life to the constitutional mandate that the rights of the
indigenous peoples be recognized and protected.

The struggle of our indigenous peoples to reclaim their ancestral lands and
domains and therefore, their heritage, is not unique. It is one that they share
with the red-skinned "Indians" of the United States, with the aborigines of
Australia, the Maori of New Zealand and the Sazmi of Sweden, to name a
few. Happily, the nations in which these indigenous peoples live all have
enacted measures in an attempt to heal an oppressive past by the promise
of a progressive future. Thus has the international community realized the
injustices that have been perpetrated upon the indigenous peoples. This
sentiment among the family of nations is expressed in a number of
documents, the most recent and most comprehensive of which is the Draft
United Nations Declaration on the Rights of Indigenous Peoples which was
adopted by the UN Sub-Commission on Prevention of Discrimination and
Protection of Minorities by its resolution on August 26, 1994. Among the
rights recognized by the UN Draft is the restitution of lands, territories and
even the resources which the indigenous peoples have traditionally owned or
otherwise occupied or used, and which have been confiscated, occupied,
used or damaged without the free and informed consent of the indigenous
peoples.

A Historical Backdrop on the Indigenous Peoples

The term "indigenous" traces its origin to the Old Latin word indu, meaning
"within." In the sense the term has come to be used, it is nearer in meaning
to the Latin word indigenus, which means "native."3 "Indigenous" refers to
that which originated or has been produced naturally in a particular land, and
has not been introduced from the outside. 4 In international law, the definition
of what constitutes "indigenous peoples" attains some degree of controversy.
No definition of the term "indigenous peoples" has been adopted by the
United Nations (UN), although UN practice has been guided by a working
definition in the 1986 Report of UN Special Rapporteur Martinez Cobo: 5
Indigenous communities, peoples and nations are those which, having a
historical continuity with pre-invasion and pre-colonial societies that
developed on their territories, consider themselves distinct from other
sections of the societies now prevailing in those territories, or parts of them.
They form at present non-dominant sections of society and are determined
to preserve, develop and transmit to future generations their ancestral
territories, and their ethnic identity, as the basis of their continued existence
as peoples, in accordance with their own cultural patterns, social institutions
and legal systems.

This historical continuity may consist of the continuation, for an extended

period reaching into the present, of one or more of the following factors:

(a) Occupation of ancestral lands, or at least of part of them;

(b) Common ancestry with the original occupants of these lands;

(c) Culture in general, or in specific manifestations (such as religion, living

under a tribal system, membership of an indigenous community, dress,
means of livelihood, life-style, etc.);

(d) Language (whether used as the only language, as mother-tongue, as the

habitual means of communication at home or in the family, or as the main,
preferred, habitual, general or normal language);

(e) Residence in certain parts of the country; or in certain regions of the

world;

(f) Other relevant facts.6

In Philippine constitutional law, the term "indigenous peoples" pertains to

those groups of Filipinos who have retained a high degree of continuity from
pre-Conquest culture.7 Philippine legal history, however, has not been kind to
the indigenous peoples, characterized them as "uncivilized," 8 "backward
people,"9 with "barbarous practices"10 and "a low order of intelligence."11

Drawing inspiration from both our fundamental law and international law,
IPRA now employs the politically-correct conjunctive term "indigenous
peoples/indigenous cultural communities" as follows:

Sec. 3. Definition of Terms.- For purposes of this Act, the following terms
shall mean:

xxx
(h) Indigenous peoples/Indigenous cultural communities. - refer to a group of
people or homogenous societies identified by self-ascription and ascription
by others, who have continuously lived as organized community on
communally bounded and defined territory, and who have, under claims of
ownership since time immemorial, occupied, possessed and utilized such
territories, sharing common bonds of language, customs, traditions, and
other distinctive cultural traits, or who have, through resistance to political,
social and cultural inroads of colonization, non-indigenous religions and
cultures, became historically differentiated from the majority of Filipinos.
Indigenous peoples shall likewise include peoples who are regarded as
indigenous on account of their descent from the populations which inhabited
the country at the time of conquest or colonization, or at the time of inroads
of non-indigenous religions and cultures, or the establishment of present
State boundaries, who retain some or all of their own social, economic,
cultural and political institutions, but who may have been displaced from
their traditional domains or who may have resettled outside their ancestral
domains x x x.

Long before the Spaniards set foot in these islands, the indigenous peoples
were already plowing our soil and hunting in our forests. The Filipinos of Aeta
and Malay stock, who were the original inhabitants of our archipelago, were,
at that time, practicing a native culture. From the time the Spaniards arrived
up to the early part of the American regime,12 these native inhabitants
resisted foreign invasion, relentlessly fighting for their lands. Today, from the
remote uplands of Northern Luzon, to Palawan, Mindoro and Mindanao, the
indigenous peoples continue to live on and cultivate their ancestral lands,
the lands of their forefathers.

Though Filipinos today are essentially of the same stock as the indigenous
peoples, our national culture exhibits only the last vestiges of this native
culture. Centuries of colonial rule and neocolonial domination have created a
discernible distinction between the cultural majority and the group of cultural
minorities.13 The extant Philippine national culture is the culture of the
majority; its indigenous roots were replaced by foreign cultural elements that
are decidedly pronounced, if not dominant.14 While the culture of the majority
reoriented itself to Western influence, the culture of the minorities has
retained its essentially native character.

One of every six Filipinos is a member of an indigenous cultural community.

Around twelve million Filipinos are members of the one hundred and ten or
so indigenous cultural communities,15 accounting for more than
seventeen per centum of the estimated seventy million Filipinos16 in our
country. Sadly, the indigenous peoples are one of the poorest sectors of
Philippine society. The incidence of poverty and malnutrition among them is
significantly higher than the national average. The indigenous peoples are
also among the most powerless. Perhaps because of their inability to speak
the language of law and power, they have been relegated to the fringes of
society. They have little, if any, voice in national politics and enjoy the least
protection from economic exploitation.

The Constitutional Policies on Indigenous Peoples

The framers of the 1987 Constitution, looking back to the long destitution of
our less fortunate brothers, fittingly saw the historic opportunity to actualize
the ideals of people empowerment and social justice, and to reach out
particularly to the marginalized sectors of society, including the indigenous
peoples. They incorporated in the fundamental law several provisions
recognizing and protecting the rights and interests of the indigenous
peoples, to wit:

Sec. 22. The State recognizes and promotes the rights of indigenous peoples
within the framework of national unity and development. 17

Sec. 5. The State, subject to the provisions of this Constitution and national
development policies and programs, shall protect the rights of indigenous
cultural communities to their ancestral lands to ensure their economic,
social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing
property rights and relations in determining the ownership and extent of
ancestral domains.18

Sec. 1. The Congress shall give the highest priority to the enactment of
measures that protect and enhance the right of all the people to human
dignity, reduce social, economic and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for the
common good.

To this end, the State shall regulate the acquisition, ownership, use and
disposition of property and its increments.19

Sec. 6. The State shall apply the principles of agrarian reform or stewardship,
whenever applicable in accordance with law, in the disposition and utilization
of other natural resources, including lands of the public domain under lease
or concession, subject to prior rights, homestead rights of small settlers, and
the rights of indigenous communities to their ancestral lands. 20

Sec. 17. The State shall recognize, respect, and protect the rights of
indigenous cultural communities to preserve and develop their cultures,
traditions, and institutions. It shall consider these rights in the formulation of
national plans and policies.21

Sec. 12. The Congress may create a consultative body to advise the
President on policies affecting indigenous cultural communities, the majority
of the members of which shall come from such communities. 22

IPRA was enacted precisely to implement the foregoing constitutional

provisions. It provides, among others, that the State shall recognize and
promote the rights of indigenous peoples within the framework of national
unity and development, protect their rights over the ancestral lands and
ancestral domains and recognize the applicability of customary laws
governing property rights or relations in determining the ownership and
extent of the ancestral domains.23 Moreover, IPRA enumerates the civil and
political rights of the indigenous peoples;24 spells out their social and cultural
rights;25 acknowledges a general concept of indigenous property right and
recognizes title thereto;26 and creates the NCIP as an independent agency
under the Office of the President.27

Preliminary Issues

A. The petition presents an actual controversy.

The time-tested standards for the exercise of judicial review are: (1) the
existence of an appropriate case; (2) an interest personal and substantial by
the party raising the constitutional question; (3) the plea that the function be
exercised at the earliest opportunity; and (4) the necessity that the
constitutional question be passed upon in order to decide the case. 28

Courts can only decide actual controversies, not hypothetical questions or

cases.29 The threshold issue, therefore, is whether an "appropriate case"
exists for the exercise of judicial review in the present case.

An "actual case or controversy" means an existing case or controversy which

is both ripe for resolution and susceptible of judicial determination, and that
which is not conjectural or anticipatory,30 or that which seeks to resolve
hypothetical or feigned constitutional problems. 31 A petition raising a
constitutional question does not present an "actual controversy," unless it
alleges a legal right or power. Moreover, it must show that a conflict of rights
exists, for inherent in the term "controversy" is the presence of opposing
views or contentions.32 Otherwise, the Court will be forced to resolve issues
which remain unfocused because they lack such concreteness provided when
a question emerges precisely framed from a clash of adversary arguments
exploring every aspect of a multi-faceted situation embracing conflicting and
demanding interests.33 The controversy must also be justiciable; that is, it
must be susceptible of judicial determination. 34

In the case at bar, there exists a live controversy involving a clash of legal
rights. A law has been enacted, and the Implementing Rules and Regulations
approved. Money has been appropriated and the government agencies
concerned have been directed to implement the statute. It cannot be
successfully maintained that we should await the adverse consequences of
the law in order to consider the controversy actual and ripe for judicial
resolution. It is precisely the contention of the petitioners that the law, on its
face, constitutes an unconstitutional abdication of State ownership over
lands of the public domain and other natural resources. Moreover, when the
State machinery is set into motion to implement an alleged unconstitutional
statute, this Court possesses sufficient authority to resolve and prevent
imminent injury and violation of the constitutional process.

B. Petitioners, as citizens and taxpayers, have the requisite standing to raise

the constitutional questions herein.

In addition to the existence of an actual case or controversy, a person who

assails the validity of a statute must have a personal and substantial interest
in the case, such that, he has sustained, or will sustain, a direct injury as a
result of its enforcement.35 Evidently, the rights asserted by petitioners as
citizens and taxpayers are held in common by all the citizens, the violation of
which may result only in a "generalized grievance". 36 Yet, in a sense, all
citizen’s and taxpayer’s suits are efforts to air generalized grievances about
the conduct of government and the allocation of power. 37

In several cases, the Court has adopted a liberal attitude with regard to
standing.38 The proper party requirement is considered as merely
procedural,39 and the Court has ample discretion with regard thereto. 40 As
early as 1910, the Court in the case of Severino vs. Governor General 41 held:

x x x When the relief is sought merely for the protection of private rights, the
relator must show some personal or special interest in the subject matter,
since he is regarded as the real party in interest and his right must clearly
appear. Upon the other hand, when the question is one of public
right and the object of the mandamus is to procure the enforcement of a
public duty, the people are regarded as the real party in interest, and
the relator at whose instigation the proceedings are instituted need
not show that he has any legal or special interest in the result, it
being sufficient to show that he is a citizen and as such interested in
the execution of the laws.42

This Court has recognized that a "public right," or that which belongs to the
people at large, may also be the subject of an actual case or controversy.
In Severino, we ruled that a private citizen may enforce a "public right" in
behalf of other citizens. We opined therein that:

… The right which [petitioner] seeks to enforce is not greater or different

from that of any other qualified elector in the municipality of Silay. It is also
true that the injury which he would suffer in case he fails to obtain the relief
sought would not be greater or different from that of the other electors;
but he is seeking to enforce a public right as distinguished from a
private right. The real party in interest is the public, or the qualified
electors of the town of Silay. Each elector has the same right and would
suffer the same injury. Each elector stands on the same basis with
reference to maintaining a petition whether or not the relief sought by
the relator should be granted.43

In Tañada v. Tuvera,44 the Court enforced the "public right" to due process
and to be informed of matters of public concern.

In Garcia vs. Board of Investments,45 the Court upheld the "public right" to be
heard or consulted on matters of national concern.

In Oposa v. Factoran,46 the Court recognized the "public right" of citizens to

"a balanced and healthful ecology which, for the first time in our nation’s
constitutional history, is solemnly incorporated in the fundamental law." 47 Mr.
Justice (now Chief Justice) Hilario G. Davide, Jr., delivering the opinion of the
Court, stated that:

Such a right belongs to a different category of rights altogether for it

concerns nothing less than self-preservation and self-perpetuation-aptly and
fittingly stressed by petitioners-the advancement of which may even be said
to predate all governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for they
are assumed to exist from the inception of humankind.48
Petitioners, as citizens, possess the "public right" to ensure that the
national patrimony is not alienated and diminished in violation of the
Constitution. Since the government, as the guardian of the national
patrimony, holds it for the benefit of all Filipinos without distinction as to
ethnicity, it follows that a citizen has sufficient interest to maintain a suit to
ensure that any grant of concessions covering the national economy and
patrimony strictly complies with constitutional requirements. Thus, the
preservation of the integrity and inviolability of the national patrimony is a
proper subject of a citizen’s suit.

In addition, petitioners, as taxpayers, possess the right to restrain officials

from wasting public funds through the enforcement of an unconstitutional
statute. It is well-settled that a taxpayer has the right to enjoin public
officials from wasting public funds through the implementation of an
unconstitutional statute,49 and by necessity, he may assail the validity of a
statute appropriating public funds.50 The taxpayer has paid his taxes and
contributed to the public coffers and, thus, may inquire into the manner by
which the proceeds of his taxes are spent. The expenditure by an official of
the State for the purpose of administering an invalid law constitutes a
misapplication of such funds.51

The IPRA appropriates funds as indicated in its title: "An Act to Recognize,
Protect and Promote the Rights of Indigenous Cultural
Communities/Indigenous Peoples, Creating the National Commission on
Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating
Funds Therefor, and for Other Purposes." In the same manner, Section 79
authorizes for the expenditure of public funds by providing that "the amount
necessary to finance [its] initial implementation shall be charged against the
current year's appropriation for the Office for Northern Cultural Communities
(the "ONCC") and the Office for Southern Cultural Communities (the
"OSCC"),"52 which were merged as organic offices of the NCIP.53 Thus, the
IPRA is a valid subject of a taxpayer’s suit.

C. The petition for prohibition and mandamus is not an improper remedy.

Prohibition is an extraordinary writ directed against any tribunal, corporation,

board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, ordering said entity or person to desist from further
proceedings when said proceedings are without or in excess of said entity’s
or person’s jurisdiction, or are accompanied with grave abuse of discretion,
and there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law.54 Mandamus, on the other hand, is an
extraordinary writ commanding a tribunal, corporation, board, officer or
person, immediately or at some other specified time, to do the act required
to be done, when said entity or person unlawfully neglects the performance
of an act which the law specifically enjoins as a duty resulting from an office,
trust or station, or when said entity or person unlawfully excludes another
from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the
ordinary course of law.55

In this case, the petitioners pray that respondents be restrained from

implementing the challenged provisions of the IPRA and its Implementing
Rules and the assailed DENR Circular No. 2, series of 1998, and that the
same officials be enjoined from disbursing public funds for the
implementation of the said law and rules. They further ask that the Secretary
of the DENR be compelled to perform his duty to control and supervise the
activities pertaining to natural resources.

Prohibition will lie to restrain the public officials concerned from

implementing the questioned provisions of the IPRA and from disbursing
funds in connection therewith if the law is found to be unconstitutional.
Likewise, mandamus will lie to compel the Secretary of the DENR to perform
his duty to control and supervise the exploration, development, utilization
and conservation of the country’s natural resources. Consequently, the
petition for prohibition and mandamus is not an improper remedy for the
relief sought.

D. Notwithstanding the failure of petitioners to observe the hierarchy of

courts, the Court assumes jurisdiction over the petition in view of the
importance of the issues raised therein.

Between two courts of concurrent original jurisdiction, it is the lower court

that should initially pass upon the issues of a case. That way, as a particular
case goes through the hierarchy of courts, it is shorn of all but the important
legal issues or those of first impression, which are the proper subject of
attention of the appellate court. This is a procedural rule borne of experience
and adopted to improve the administration of justice.

This Court has consistently enjoined litigants to respect the hierarchy of

courts. Although this Court has concurrent jurisdiction with the Regional Trial
Courts and the Court of Appeals to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction,56 such
concurrence does not give a party unrestricted freedom of choice of court
forum. The resort to this Court’s primary jurisdiction to issue said writs shall
be allowed only where the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling circumstances justify
such invocation.57 We held in People v. Cuaresma58 that:

A becoming regard for judicial hierarchy most certainly indicates that

petitions for the issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those against the
latter, with the Court of Appeals. A direct invocation of the Supreme
Court’s original jurisdiction to issue these writs should be allowed
only where there are special and important reasons therefor, clearly
and specifically set out in the petition. This is established policy. It is a
policy necessary to prevent inordinate demands upon the Court’s time and
attention which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the Court’s docket x x
x.59 (Emphasis supplied.)

IPRA aims to rectify the historical injustice inflicted upon indigenous peoples.
Its impact upon the lives not only of the indigenous peoples but also upon
the lives of all Filipinos cannot be denied. The resolution of this case by the
Court at the earliest opportunity is necessary if the aims of the law are to be
achieved. This reason is compelling enough to allow petitioners’ invocation of
this Court’s jurisdiction in the first instance.

Substantive Issues

Primary Issue

The issue of prime concern raised by petitioners and the Solicitor General
revolves around the constitutionality of certain provisions of IPRA, specifically
Sections 3(a), 3(b), 5, 6, 7, 8, 57, 58 and 59. These provisions allegedly
violate Section 2, Article XII of the Constitution, which states:

Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the State.
With the exception of agricultural lands, all other natural resources shall not
be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The
State may directly undertake such activities, or it may enter into co-
production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five years,
and under such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, beneficial use may be the measure
and limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.

The Congress, may, by law, allow small-scale utilization of natural resources

by Filipino citizens, as well as cooperative fish farming, with priority to
subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons.

The President may enter into agreements with foreign-owned corporations

involving either technical or financial assistance for large-scale exploration,
development and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In
such agreements, the State shall promote the development and use of local
scientific and technical resources.

The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution.

Under IPRA, indigenous peoples may obtain the recognition of their right of
ownership60 over ancestral lands and ancestral domains by virtue of native
title.61 The term "ancestral lands" under the statute refers
to lands occupied by individuals, families and clans who are members of
indigenous cultural communities, including residential lots, rice terraces or
paddies, private forests, swidden farms and tree lots. These lands are
required to have been "occupied, possessed and utilized" by them or through
their ancestors "since time immemorial, continuously to the present". 62 On
the other hand, "ancestral domains" is defined as areas generally
belonging to indigenous cultural communities, including ancestral lands,
forests, pasture, residential and agricultural lands, hunting grounds, worship
areas, and lands no longer occupied exclusively by indigenous cultural
communities but to which they had traditional access, particularly the home
ranges of indigenous cultural communities who are still nomadic or shifting
cultivators. Ancestral domains also include inland waters, coastal areas and
natural resources therein.63 Again, the same are required to have been "held
under a claim of ownership, occupied or possessed by ICCs/IPs, by
themselves or through their ancestors, communally or individually since time
immemorial, continuously to the present".64 Under Section 56, property
rights within the ancestral domains already existing and/or vested upon
effectivity of said law "shall be recognized and respected."

Ownership is the crux of the issue of whether the provisions of IPRA

pertaining to ancestral lands, ancestral domains, and natural resources are
unconstitutional. The fundamental question is, who, between the State and
the indigenous peoples, are the rightful owners of these properties?

It bears stressing that a statute should be construed in harmony with, and

not in violation, of the fundamental law. 65 The reason is that the legislature,
in enacting a statute, is assumed to have acted within its authority and
adhered to the constitutional limitations. Accordingly, courts should presume
that it was the intention of the legislature to enact a valid, sensible, and just
law and one which operates no further than may be necessary to effectuate
the specific purpose of the law.66

A. The provisions of IPRA recognizing the ownership of indigenous peoples

over the ancestral lands and ancestral domains are not unconstitutional.

In support of their theory that ancestral lands and ancestral domains are part
of the public domain and, thus, owned by the State, pursuant to Section 2,
Article XII of the Constitution, petitioners and the Solicitor General advance
the following arguments:

First, according to petitioners, the King of Spain under international law

acquired exclusive dominion over the Philippines by virtue of discovery and
conquest. They contend that the Spanish King under the theory of jura
regalia, which was introduced into Philippine law upon Spanish conquest in
1521, acquired title to all the lands in the archipelago.

Second, petitioners and the Solicitor General submit that ancestral lands and
ancestral domains are owned by the State. They invoke the theory of jura
regalia which imputes to the State the ownership of all lands and makes the
State the original source of all private titles. They argue that the Philippine
State, as successor to Spain and the United States, is the source of any
asserted right of ownership in land.

Third, petitioners and the Solicitor General concede that the Cariño doctrine
exists. However, petitioners maintain that the doctrine merely states that
title to lands of the public domain may be acquired by prescription. The
Solicitor General, for his part, argues that the doctrine applies only to
alienable lands of the public domain and, thus, cannot be extended to other
lands of the public domain such as forest or timber, mineral lands, and
national parks.

Fourth, the Solicitor General asserts that even assuming that native title over
ancestral lands and ancestral domains existed by virtue of
the Cariño doctrine, such native title was extinguished upon the ratification
of the 1935 Constitution.

Fifth, petitioners admit that Congress is mandated under Section 5, Article XII
of the Constitution to protect that rights of indigenous peoples to their
ancestral lands and ancestral domains. However, they contend that the
mandate is subject to Section 2, Article XII and the theory of jura
regalia embodied therein. According to petitioners, the recognition and
protection under R.A. 8371 of the right of ownership over ancestral lands and
ancestral domains is far in excess of the legislative power and constitutional
mandate of Congress.

Finally, on the premise that ancestral lands and ancestral domains are owned
by the State, petitioners posit that R.A. 8371 violates Section 2, Article XII of
the Constitution which prohibits the alienation of non-agricultural lands of the
public domain and other natural resources.

I am not persuaded by these contentions.

Undue reliance by petitioners and the Solicitor General on the theory of jura
regalia is understandable. Not only is the theory well recognized in our legal
system; it has been regarded, almost with reverence, as the immutable
postulate of Philippine land law. It has been incorporated into our
fundamental law and has been recognized by the Court. 67

Generally, under the concept of jura regalia, private title to land must be
traced to some grant, express or implied, from the Spanish Crown or its
successors, the American Colonial government, and thereafter, the Philippine
Republic. The belief that the Spanish Crown is the origin of all land titles in
the Philippines has persisted because title to land must emanate from some
source for it cannot issue forth from nowhere.68

In its broad sense, the term "jura regalia" refers to royal rights,69 or those
rights which the King has by virtue of his prerogatives. 70 In Spanish law, it
refers to a right which the sovereign has over anything in which a subject
has a right of property or propriedad.71 These were rights enjoyed during
feudal times by the king as the sovereign.
The theory of the feudal system was that title to all lands was originally held
by the King, and while the use of lands was granted out to others who were
permitted to hold them under certain conditions, the King theoretically
retained the title.72 By fiction of law, the King was regarded as the original
proprietor of all lands, and the true and only source of title, and from him all
lands were held.73 The theory of jura regalia was therefore nothing more than
a natural fruit of conquest.74

The Regalian theory, however, does not negate native title to lands held in
private ownership since time immemorial. In the landmark case of Cariño vs.
Insular Government75 the United States Supreme Court, reversing the
decision76of the pre-war Philippine Supreme Court, made the following
pronouncement:

x x x Every presumption is and ought to be taken against the Government in

a case like the present. It might, perhaps, be proper and sufficient to say
that when, as far back as testimony or memory goes, the land has
been held by individuals under a claim of private ownership, it will
be presumed to have been held in the same way from before the
Spanish conquest, and never to have been public land. x x
x.77 (Emphasis supplied.)

The above ruling institutionalized the recognition of the existence of native

title to land, or ownership of land by Filipinos by virtue of possession under a
claim of ownership since time immemorial and independent of any grant
from the Spanish Crown, as an exception to the theory of jura regalia.

In Cariño, an Igorot by the name of Mateo Cariño applied for registration in

his name of an ancestral land located in Benguet. The applicant established
that he and his ancestors had lived on the land, had cultivated it, and had
used it as far they could remember. He also proved that they had all been
recognized as owners, the land having been passed on by inheritance
according to native custom. However, neither he nor his ancestors had any
document of title from the Spanish Crown. The government opposed the
application for registration, invoking the theory of jura regalia. On appeal,
the United States Supreme Court held that the applicant was entitled to the
registration of his native title to their ancestral land.

Cariño was decided by the U.S. Supreme Court in 1909, at a time when
decisions of the U.S. Court were binding as precedent in our jurisdiction. 78 We
applied the Cariño doctrine in the 1946 case of Oh Cho vs. Director of
Lands,79 where we stated that "[a]ll lands that were not acquired from the
Government either by purchase or by grant, belong to the public domain, but
[a]n exception to the rule would be any land that should have been in the
possession of an occupant and of his predecessors in interest since time
immemorial, for such possession would justify the presumption that the land
had never been part of the public domain or that it had been private
property even before the Spanish conquest." 80

Petitioners however aver that the U.S. Supreme Court’s ruling in Cariño was
premised on the fact that the applicant had complied with the requisites of
acquisitive prescription, having established that he and his predecessors-in-
interest had been in possession of the property since time immemorial. In
effect, petitioners suggest that title to the ancestral land applied for by
Cariño was transferred from the State, as original owner, to Cariño by virtue
of prescription. They conclude that the doctrine cannot be the basis for
decreeing "by mere legislative fiat…that ownership of vast tracts of land
belongs to [indigenous peoples] without judicial confirmation." 81

The Solicitor General, for his part, claims that the Cariño doctrine applies
only to alienable lands of the public domain and, as such, cannot be
extended to other lands of the public domain such as forest or timber,
mineral lands, and national parks.

There is no merit in these contentions.

A proper reading of Cariño would show that the doctrine enunciated therein
applies only to lands which have always been considered as private,
and not to lands of the public domain, whether alienable or otherwise. A
distinction must be made between ownership of land under native title and
ownership by acquisitive prescription against the State. Ownership by virtue
of native title presupposes that the land has been held by its possessor and
his predecessors-in-interest in the concept of an owner since time
immemorial. The land is not acquired from the State, that is, Spain or its
successors-in-interest, the United States and the Philippine Government.
There has been no transfer of title from the State as the land has been
regarded as private in character as far back as memory goes. In contrast,
ownership of land by acquisitive prescription against the State involves a
conversion of the character of the property from alienable public land to
private land, which presupposes a transfer of title from the State to a private
person. Since native title assumes that the property covered by it is private
land and is deemed never to have been part of the public domain, the
Solicitor General’s thesis that native title under Cariño applies only to lands
of the public domain is erroneous. Consequently, the classification of lands of
the public domain into agricultural, forest or timber, mineral lands, and
national parks under the Constitution82 is irrelevant to the application of
the Cariño doctrine because the Regalian doctrine which vests in the State
ownership of lands of the public domain does not cover ancestral lands and
ancestral domains.

Legal history supports the Cariño doctrine.

When Spain acquired sovereignty over the Philippines by virtue of its

discovery and occupation thereof in the 16th century and the Treaty of
Tordesillas of 1494 which it entered into with Portugal, 83 the continents of
Asia, the Americas and Africa were considered as terra nullius although
already populated by other peoples.84 The discovery and occupation by the
European States, who were then considered as the only members of the
international community of civilized nations, of lands in the said continents
were deemed sufficient to create title under international law. 85

Although Spain was deemed to have acquired sovereignty over the

Philippines, this did not mean that it acquired title to all lands in the
archipelago. By virtue of the colonial laws of Spain, the Spanish Crown was
considered to have acquired dominion only over the unoccupied and
unclaimed portions of our islands.86

In sending the first expedition to the Philippines, Spain did not intend to
deprive the natives of their property. Miguel Lopez de Legazpi was under
instruction of the Spanish King to do no harm to the natives and to their
property. In this regard, an authority on the early Spanish colonial period in
the Philippines wrote:

The government of [the King of Spain] Philip II regarded the Philippines as a

challenging opportunity to avoid a repetition of the sanguinary conquests of
Mexico and Peru. In his written instructions for the Adelantado Legazpi, who
commanded the expedition, Philip II envisaged a bloodless pacification of the
archipelago. This extraordinary document could have been lifted almost
verbatim from the lectures of the Dominican theologian, Francisco de Vitoria,
delivered in the University of Salamanca. The King instructed Legazpi to
inform the natives that the Spaniards had come to do no harm to their
persons or to their property. The Spaniards intended to live among them in
peace and in friendship and "to explain to them the law of Jesus Christ by
which they will be saved." Although the Spanish expedition could defend
themselves if attacked, the royal instructions admonished the commander to
commit no aggressive act which might arouse native hostility. 87
Spanish colonial laws recognized and respected Filipino landholdings
including native land occupancy.88 Thus, the Recopilación de Leyes de las
Indias expressly conferred ownership of lands already held by the
natives.89 The royal decrees of 1880 and 1894 did not extinguish native title
to land in the Philippines. The earlier royal decree, dated June 25, 1880,
provided that all those in "unlawful possession of royal lands" must legalize
their possession by means of adjustment proceedings, 90 and within the
period specified. The later royal decree, dated February 13, 1894, otherwise
known as the Maura Law, declared that titles that were capable of
adjustment under the royal decree of 1880, but for which adjustment was
not sought, were forfeited. Despite the harsh wording of the Maura Law, it
was held in the case of Cariño that the royal decree of 1894 should not be
construed as confiscation of title, but merely as the withdrawal of the
privilege of registering such title.91

Neither was native title disturbed by the Spanish cession of the Philippines to
the United States, contrary to petitioners’ assertion that the US merely
succeeded to the rights of Spain, including the latter’s rights over lands of
the public domain.92 Under the Treaty of Paris of December 10, 1898, the
cession of the Philippines did not impair any right to property existing at the
time.93 During the American colonial regime, native title to land was
respected, even protected. The Philippine Bill of 1902 provided that property
and rights acquired by the US through cession from Spain were to be
administered for the benefit of the Filipinos.94 In obvious adherence to
libertarian principles, McKinley’s Instructions, as well as the Philippine Bill of
1902, contained a bill of rights embodying the safeguards of the US
Constitution. One of these rights, which served as an inviolable rule upon
every division and branch of the American colonial government in the
Philippines,95 was that "no person shall be deprived of life, liberty, or property
without due process of law."96 These vested rights safeguarded by the
Philippine Bill of 1902 were in turn expressly protected by the due process
clause of the 1935 Constitution. Resultantly, property rights of the
indigenous peoples over their ancestral lands and ancestral domains were
firmly established in law.

Nonetheless, the Solicitor General takes the view that the vested rights of
indigenous peoples to their ancestral lands and domains were "abated by the
direct act by the sovereign Filipino people of ratifying the 1935
Constitution."97 He advances the following arguments:
The Sovereign, which is the source of all rights including ownership, has the
power to restructure the consolidation of rights inherent in ownership in the
State. Through the mandate of the Constitutions that have been adopted,
the State has wrested control of those portions of the natural resources it
deems absolutely necessary for social welfare and existence. It has been
held that the State may impair vested rights through a legitimate exercise of
police power.

Vested rights do not prohibit the Sovereign from performing acts not only
essential to but determinative of social welfare and existence. To allow
otherwise is to invite havoc in the established social system. x x x

Time-immemorial possession does not create private ownership in cases of

natural resources that have been found from generation to generation to be
critical to the survival of the Sovereign and its agent, the State. 98

Stated simply, the Solicitor General’s argument is that the State, as the
source of all titles to land, had the power to re-vest in itself, through the
1935 Constitution, title to all lands, including ancestral lands and ancestral
domains. While the Solicitor General admits that such a theory would
necessarily impair vested rights, he reasons out that even vested rights of
ownership over ancestral lands and ancestral domains are not absolute and
may be impaired by the legitimate exercise of police power.

I cannot agree. The text of the provision of the 1935 Constitution invoked by
the Solicitor General, while embodying the theory of jura regalia, is too clear
for any misunderstanding. It simply declares that "all agricultural, timber,
and mineral lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State." 99 Nowhere does it state that
certain lands which are "absolutely necessary for social welfare and
existence," including those which are not part of the public domain, shall
thereafter be owned by the State. If there is any room for constitutional
construction, the provision should be interpreted in favor of the preservation,
rather than impairment or extinguishment, of vested rights. Stated
otherwise, Section 1, Article XII of the 1935 Constitution cannot be construed
to mean that vested right which had existed then were extinguished and that
the landowners were divested of their lands, all in the guise of "wrest[ing]
control of those portions of the natural resources [which the State] deems
absolutely necessary for social welfare and existence." On the contrary, said
Section restated the fundamental rule against the diminution of existing
rights by expressly providing that the ownership of lands of the public
domain and other natural resources by the State is "subject to any existing
right, grant, lease, or concessions." The "existing rights" that were intended
to be protected must, perforce, include the right of ownership by
indigenous peoples over their ancestral lands and domains. The words of the
law should be given their ordinary or usual meaning, 100 and the term
"existing rights" cannot be assigned an unduly restrictive definition.

Petitioners concede that Congress is mandated under Section 5, Article XII of

the 1987 Constitution101to protect the rights of indigenous peoples to their
ancestral lands and ancestral domains. Nonetheless, they contend that the
recognition and protection under IPRA of the right of ownership of indigenous
peoples over ancestral lands and ancestral domains are far in excess of the
legislative power and constitutional mandate of the Congress, 102 since such
recognition and protection amount to the alienation of lands of the public
domain, which is proscribed under Section 2, Article XII of the Constitution.

Section 5, Article XII of the Constitution expresses the sovereign intent to

"protect the rights of indigenous peoples to their ancestral lands." In its
general and ordinary sense, the term "right" refers to any legally enforceable
claim.103 It is a power, privilege, faculty or demand inherent in one person
and incident upon another.104 When used in relation to property, "right"
includes any interest in or title to an object, or any just and legal claim to
hold, use and enjoy it.105 Said provision in the Constitution cannot, by any
reasonable construction, be interpreted to exclude the protection of
the right of ownership over such ancestral lands. For this reason, Congress
cannot be said to have exceeded its constitutional mandate and power in
enacting the provisions of IPRA, specifically Sections 7(a) and 8, which
recognize the right of ownership of the indigenous peoples over ancestral
lands.

The second paragraph of Section 5, Article XII also grants Congress the
power to "provide for the applicability of customary laws governing property
rights or relations in determining the ownership and extent of ancestral
domains." In light of this provision, does Congress have the power to decide
whether ancestral domains shall be private property or part of the public
domain? Also, does Congress have the power to determine whether the
"extent" of ancestral domains shall include the natural resources found
therein?

It is readily apparent from the constitutional records that the framers of the
Constitution did not intend Congress to decide whether ancestral domains
shall be public or private property. Rather, they acknowledged that ancestral
domains shall be treated as private property, and that customary laws shall
merely determine whether such private ownership is by the entire
indigenous cultural community, or by individuals, families, or clans within the
community. The discussion below between Messrs. Regalado and Bennagen
and Mr. Chief Justice Davide, then members of the 1986 Constitutional
Commission, is instructive:

MR. REGALADO. Thank you, Madame President. May I seek some

clarifications from either Commissioner Bennagen or Commissioner Davide
regarding this phrase "CONGRESS SHALL PROVIDE FOR THE APPLICABILITY
OF CUSTOMARY LAWS GOVERNING PROPERTY RIGHTS OR RELATIONS in
determining the ownership and extent of the ancestral domain," because
ordinarily it is the law on ownership and the extent thereof which determine
the property rights or relations arising therefrom. On the other hand, in this
proposed amendment the phraseology is that it is the property rights or
relations which shall be used as the basis in determining the ownership and
extent of the ancestral domain. I assume there must be a certain difference
in the customary laws and our regular civil laws on property.

MR. DAVIDE. That is exactly the reason, Madam President, why we will leave
it to Congress to make the necessary exception to the general law on
property relations.

MR. REGALADO. I was thinking if Commissioner Bennagen could give us an

example of such a customary law wherein it is the property rights and
relations that determine the ownership and the extent of that ownership,
unlike the basic fundamental rule that it is the ownership and the extent of
ownership which determine the property rights and relations arising
therefrom and consequent thereto. Perhaps, these customary laws may have
a different provision or thrust so that we could make the corresponding
suggestions also by way of an amendment.

MR. DAVIDE. That is exactly my own perception.

MR. BENNAGEN. Let me put it this way.

There is a range of customary laws governing certain types of

ownership. There would be ownership based on individuals, on clan
or lineage, or on community. And the thinking expressed in the
consultation is that this should be codified and should be recognized in
relation to existing national laws. That is essentially the
concept. 106 (Emphasis supplied.)
The intention to treat ancestral domains as private property is also apparent
from the following exchange between Messrs. Suarez and Bennagen:

MR. SUAREZ. When we speak of customary laws governing property rights or

relations in determining the ownership and extent of the ancestral domain,
are we thinking in terms of the tribal ownership or community ownership or
of private ownership within the ancestral lands or ancestral domain?

MR. BENNAGEN. The concept of customary laws is that it is considered

as ownership by private individuals, clans and even communities.

MR. SUAREZ. So, there will be two aspects to this situation. This means that
the State will set aside the ancestral domain and there is a separate law for
that. Within the ancestral domain it could accept more specific ownership in
terms of individuals within the ancestral lands.

MR. BENNAGEN. Individuals and groups within the ancestral

domain. 107 (Emphasis supplied.)

It cannot be correctly argued that, because the framers of the Constitution

never expressly mentioned Cariño in their deliberations, they did not intend
to adopt the concept of native title to land, or that they were unaware of
native title as an exception to the theory of jura regalia.108 The framers of the
Constitution, as well as the people adopting it, were presumed to be aware of
the prevailing judicial doctrines concerning the subject of constitutional
provisions, and courts should take these doctrines into consideration in
construing the Constitution.109

Having thus recognized that ancestral domains under the Constitution are
considered as private property of indigenous peoples, the IPRA, by affirming
or acknowledging such ownership through its various provisions, merely
abides by the constitutional mandate and does not suffer any vice of
unconstitutionality.

Petitioners interpret the phrase "subject to the provisions of this Constitution

and national development policies and programs" in Section 5, Article XII of
the Constitution to mean "as subject to the provision of Section 2, Article XII
of the Constitution," which vests in the State ownership of all lands of the
public domain, mineral lands and other natural resources. Following this
interpretation, petitioners maintain that ancestral lands and ancestral
domains are the property of the State.

This proposition is untenable. Indeed, Section 2, Article XII reiterates the

declarations made in the 1935 and 1973 Constitutions on the state policy of
conservation and nationalization of lands of the public domain and natural
resources, and is of paramount importance to our national economy and
patrimony. A close perusal of the records of the 1986 Constitutional
Commission reveals that the framers of the Constitution inserted the phrase
"subject to the provisions of this Constitution" mainly to prevent the
impairment of Torrens titles and other prior rights in the determination of
what constitutes ancestral lands and ancestral domains, to wit:

MR. NATIVIDAD. Just one question. I want to clear this section protecting
ancestral lands. How does this affect the Torrens title and other prior rights?

MR. BENNAGEN. I think that was also discussed in the committee hearings
and we did say that in cases where due process is clearly established in
terms of prior rights, these two have to be respected.

MR. NATIVIDAD. The other point is: How vast is this ancestral land? Is it true
that parts of Baguio City are considered as ancestral lands?

MR. BENNAGEN. They could be regarded as such. If the Commissioner still

recalls, in one of the publications that I provided the Commissioners, the
parts could be considered as ancestral domain in relation to the whole
population of Cordillera but not in relation to certain individuals or certain
groups.

MR. NATIVIDAD. The Commissioner means that the whole Baguio City is
considered as ancestral land?

MR. BENNAGEN. Yes, in the sense that it belongs to Cordillera or in the same
manner that Filipinos can speak of the Philippine archipelago as ancestral
land, but not in terms of the right of a particular person or particular group to
exploit, utilize, or sell it.

MR. NATIVIDAD. But is clear that the prior rights will be respected.

MR. BENNAGEN. Definitely. 110

Thus, the phrase "subject to the provisions of this Constitution" was intended
by the framers of the Constitution as a reiteration of the constitutional
guarantee that no person shall be deprived of property without due process
of law.

There is another reason why Section 5 of Article XII mandating the protection
of rights of the indigenous peoples to their ancestral lands cannot be
construed as subject to Section 2 of the same Article ascribing ownership of
all public lands to the State. The Constitution must be construed as a whole.
It is a rule that when construction is proper, the whole Constitution is
examined in order to determine the meaning of any provision. That
construction should be used which would give effect to the entire
instrument.111

Thus, the provisions of the Constitution on State ownership of public lands,

mineral lands and other natural resources should be read together with the
other provisions thereof which firmly recognize the rights of the indigenous
peoples. These, as set forth hereinbefore,112 include: Section 22, Article II,
providing that the State recognizes and promotes the rights of indigenous
peoples within the framework of national unity and development; Section 5,
Article XII, calling for the protection of the rights of indigenous cultural
communities to their ancestral lands to ensure their economic, social, and
cultural well-being, and for the applicability of customary laws governing
property rights and relations in determining the ownership and extent of
ancestral domains; Section 1, Article XIII, directing the removal or
reduction of social, economic, political and cultural inequities and inequalities
by equitably diffusing wealth and political power for the common
good; Section 6, Article XIII, directing the application of the principles of
agrarian reform or stewardship in the disposition and utilization of other
natural resources, subject to prior rights, homestead rights of small settlers,
and the rights of indigenous communities to their ancestral lands; Section
17, Article XIV, decreeing that the State shall recognize, respect, and
protect the rights of indigenous cultural communities to preserve and
develop their cultures, traditions, and institutions; and Section 12, Article
XVI, authorizing the Congress to create a consultative body to advise the
President on policies affecting indigenous cultural communities.

Again, as articulated in the Constitution, the first goal of the national

economy is the more equitable distribution of opportunities, income,
and wealth.113 Equity is given prominence as the first objective of national
economic development.114 The framers of the Constitution did not, by the
phrase "subject to the provisions of this Constitution and national
development policies and programs," intend to establish a hierarchy of
constitutional norms. As explained by then Commissioner (now Chief Justice)
Hilario G. Davide, Jr., it was not their objective to make certain interests
primary or paramount, or to create absolute limitations or outright
prohibitions; rather, the idea is towards the balancing of interests:

BISHOP BACANI. In Commissioner Davide’s formulation of the first sentence,

he says: "The State, SUBJECT TO THE provisions of this Constitution AND
NATIONAL DEVELOPMENT POLICIES AND PROGRAMS shall guarantee the
rights of cultural or tribal communities to their ancestral lands to insure their
economic, social and cultural well-being." There are at least two concepts
here which receive different weights very often. They are the concepts of
national development policies and programs, and the rights of cultural or
tribal communities to their ancestral lands, et cetera. I would like to ask:
When the Commissioner proposed this amendment, which was the
controlling concept? I ask this because sometimes the rights of cultural
minorities are precisely transgressed in the interest of national development
policies and programs. Hence, I would like to know which is the controlling
concept here. Is it the rights of indigenous peoples to their ancestral lands or
is it national development policies and programs.

MR. DAVIDE. It is not really a question of which is primary or which is

more paramount. The concept introduced here is really the
balancing of interests. That is what we seek to attain. We have to balance
the interests taking into account the specific needs and the specific interests
also of these cultural communities in like manner that we did so in the
autonomous regions.115 (Emphasis supplied.)

B. The provisions of R.A. 8371 do not infringe upon the State’s ownership
over the natural resources within the ancestral domains.

Petitioners posit that IPRA deprives the State of its ownership over mineral
lands of the public domain and other natural resources, 116 as well as the
State’s full control and supervision over the exploration, development and
utilization of natural resources.117 Specifically, petitioners and the Solicitor
General assail Sections 3 (a),118 5,119 and 7120 of IPRA as violative of Section 2,
Article XII of the Constitution which states, in part, that "[a]ll lands of the
public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State." 121 They would
have the Court declare as unconstitutional Section 3(a) of IPRA because the
inclusion of natural resources in the definition of ancestral domains
purportedly results in the abdication of State ownership over these
resources.

I am not convinced.

Section 3(a) merely defines the coverage of ancestral domains, and

describes the extent, limit and composition of ancestral domains by setting
forth the standards and guidelines in determining whether a particular area
is to be considered as part of and within the ancestral domains. In other
words, Section 3(a) serves only as a yardstick which points out what
properties are within the ancestral domains. It does not confer or recognize
any right of ownership over the natural resources to the indigenous peoples.
Its purpose is definitional and not declarative of a right or title.

The specification of what areas belong to the ancestral domains is, to our
mind, important to ensure that no unnecessary encroachment on private
properties outside the ancestral domains will result during the delineation
process. The mere fact that Section 3(a) defines ancestral domains to include
the natural resources found therein does not ipso facto convert the character
of such natural resources as private property of the indigenous peoples.
Similarly, Section 5 in relation to Section 3(a) cannot be construed as a
source of ownership rights of indigenous people over the natural resources
simply because it recognizes ancestral domains as their "private but
community property."

The phrase "private but community property" is merely descriptive of the

indigenous peoples’ concept of ownership as distinguished from that
provided in the Civil Code. In Civil Law, "ownership" is the "independent and
general power of a person over a thing for purposes recognized by law and
within the limits established thereby."122 The civil law concept of ownership
has the following attributes: jus utendi or the right to receive from the thing
that which it produces, jus abutendi or the right to consume the thing by its
use, jus disponendi or the power to alienate, encumber, transform and even
destroy that which is owned and jus vidicandi or the right to exclude other
persons from the possession the thing owned. 123 In contrast, the indigenous
peoples’ concept of ownership emphasizes the importance of communal or
group ownership. By virtue of the communal character of ownership, the
property held in common "cannot be sold, disposed or destroyed" 124 because
it was meant to benefit the whole indigenous community and not merely the
individual member.125

That IPRA is not intended to bestow ownership over natural resources to the
indigenous peoples is also clear from the deliberations of the bicameral
conference committee on Section 7 which recites the rights of indigenous
peoples over their ancestral domains, to wit:

CHAIRMAN FLAVIER. Accepted. Section 8126 rights to ancestral domain, this is

where we transferred the other provision but here itself -
HON. DOMINGUEZ. Mr. Chairman, if I maybe allowed to make a very short
Statement. Earlier, Mr. Chairman, we have decided to remove the
provisions on natural resources because we all agree that that
belongs to the State. Now, the plight or the rights of those indigenous
communities living in forest and areas where it could be exploited by mining,
by dams, so can we not also provide a provision to give little protection or
either rights for them to be consulted before any mining areas should be
done in their areas, any logging done in their areas or any dam construction
because this has been disturbing our people especially in the Cordilleras. So,
if there could be, if our lawyers or the secretariat could just propose a
provision for incorporation here so that maybe the right to consultation and
the right to be compensated when there are damages within their ancestral
lands.

CHAIRMAN FLAVIER. Yes, very well taken but to the best of my recollection
both are already considered in subsequent sections which we are now
looking for.

HON. DOMINGUEZ. Thank you.

CHAIRMAN FLAVIER. First of all there is a line that gives priority use for the
indigenous people where they are. Number two, in terms of the mines there
is a need for prior consultation of source which is here already. So, anyway it
is on the record that you want to make sure that the secretariat takes note of
those two issues and my assurance is that it is already there and I will make
sure that they cross check.

HON. ADAMAT. I second that, Mr. Chairman.

CHAIRMAN FLAVIER. Okay, thank you. So we now move to Section 8, there is

a Senate version you do not have and if you agree we will adopt
that.127 (Emphasis supplied.)

Further, Section 7 makes no mention of any right of ownership of the

indigenous peoples over the natural resources. In fact, Section 7(a) merely
recognizes the "right to claim ownership over lands, bodies of water
traditionally and actually occupied by indigenous peoples, sacred places,
traditional hunting and fishing grounds, and all improvements made by them
at any time within the domains." Neither does Section 7(b), which
enumerates certain rights of the indigenous peoples over the natural
resources found within their ancestral domains, contain any recognition of
ownership vis-a-vis the natural resources.
What is evident is that the IPRA protects the indigenous peoples’ ri